DIDONATO v. STANLEY BLACK & DECKER

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY DIDONATO, :

Plaintiff, : No. 20-cv-4425-JMY

:

v. :

:

BLACK & DECKER (U.S.), INC., :

Defendant. :

MEMORANDUM

YOUNGE, J. February 9, 2022

Currently before the Court is the Defendant’s Motion for Summary Judgment (hereinafter

“MSJ”) (ECF No. 17) in which Defendant raises a Daubert challenge to the expert testimony of

Andres J. Calderon, Ph.d. The Court finds this matter appropriate for resolution without oral

argument.1 See Fed. R. Civ. P. 78; L.R. 7.1(f). For the reasons set forth below, Defendant’s

motion for summary judgment and combined Daubert Motion will be denied.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff’s claims arise out of a May 23, 2018, accident that occurred at his business,

Custom Coach, Inc., located in Upper Darby, Pennsylvania. On May 23, 2018, Plaintiff was

buffing the side hood of a car with a DeWalt Model DW849 Polisher (“Polisher”) manufactured

1 A hearing is not required on a Daubert challenge if the district court can point to adequate

support in the record for the challenged opinions—if the expert depositions, affidavits and briefing before

the court are sufficient to support the court’s findings. Oddi v. Ford Motor Co., 234 F.3d 136, 154-55 (3d

Cir. 2000) (rejecting argument that Daubert hearing was required where court had reviewed record which

included two expert depositions, a declaration, and an expert report); juxtaposed to Padillas v. Stork-

Gamco, Inc., 186 F.3d 412 (3d Cir. Aug 2, 2019) (vacating a district court order that granted a Daubert

motion and entered summary judgment in favor of the defendant where the record was scant). In

Padillas, the Third Circuit was not persuaded by the fact that the plaintiff had not requested a Daubert

hearing because the district court had an independent obligation to investigate the record before

dismissing the action on a Daubert motion.

by Black & Decker, which he purchased in new condition in 2006. (DiDonato Deposition page

44, 67-70, SJM Ex. B, ECF No. 17-6.) While using the Polisher, a loose electric cord got caught

on the exposed spindle shaft of the Polisher and lassoed his right (dominant) ring finger, severing

it at the distal interphalangeal joint. (Id. pages 121-122, 124.) At deposition, Plaintiff testified

that the loose electric cord was eighteen to twenty inches long and commonly used in his shop

for utility purposes. (Id. page 122.) Plaintiff clearly testified that the electric cord became

wrapped around the spindle shaft of the Polisher. (Id.) However, he also admitted that the

accident occurred quickly when he looked away from his work after being distracted by someone

who was trying to get his attention. (Id. page 118.) Plaintiff admitted that he did not know

where the cord was located prior to the accident, or how it got entangled in the Polisher spindle

shaft. (Id. page 121-122., 124.)

In support of his contention that the Polisher was defectively designed, and with specific

relevance to the pending Motions, Plaintiff offers the expert testimony of biomechanical and

biomedical engineer Andres J. Calderon, Ph.d. Calderon reviewed Plaintiff’s account of the

accident and examined the Polisher in comparison to other similar models currently on the

market that were designed with covered spindle shafts. (Calderon Report page 1, 4, 7, SJM Ex.

J., ECF NO. 17-14.) Calderon reached the conclusion that the Polisher was defectively designed

because it did not have an enclosed or covered spindle shaft. (Id. page 5, 8-9.) He further

opined that the Polisher’s spindle shaft was not perfectly smooth and rounded; rather, it had flat

edges that further contributed to an entanglement hazard. (Id.) In his expert report, Calderon

opined, “It is known that rotating shafts, even if they rotate at a slow revolution, can create an

entanglement hazard since cables, clothes, ropes and other items that come in contact with a

rotating shaft can become entangled.” (Id. page 6.) In comparing the Polisher with other models

on the market, Calderon opined that Defendant should have recognized this danger and covered

the spindle shaft. (Id. page 5.) Calderon compared the Polisher to models designed by other

manufactures with covered spindle shafts and opined that it would have been both economically

and functionally feasible for Defendant to have designed the Polisher with a covered shaft. (Id.

page 7-8.) Calderon sat for an expert deposition in connection with this matter in which he

reaffirmed the opinions expressed in his expert report. (Calderon Deposition, MSJ, Ex. K, ECF

No. 17-15.)

II. STANDARD OF REVIEW

Summary judgment is proper “if the movant shows that 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). In examining the defendant’s motion, the court must view the facts in the light most

favorable to the nonmovant, drawing all reasonable inferences in his favor. InterVest, Inc. v.

Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003). Disagreements over what inferences may

be drawn from the facts, even undisputed ones, preclude summary judgment. Ideal Dairy

Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996). Credibility determinations, the

drawing of legitimate inferences from facts, and the weighing of evidence are matters left to the

jury. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Summary judgment is to be granted

cautiously, with due respect for a party’s right to have its factually grounded claims and defenses

tried before a jury. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Anderson,

477 U.S. at 255.

III. DISCUSSION

Defendant’s motion for summary judgment incorporates a Daubert challenge (Daubert

Motion) to preclude the expert opinions and testimony of Andres J. Calderon, Ph.d., who

Plaintiff offers as his biomechanical and biomedical engineer. Defendant argues that Calderon

should be precluded from offering opinions, and then essentially seeks summary judgment by

arguing that Plaintiff fails to produce the requisite expert testimony in support of his case.

Defendant primarily avers that Plaintiff’s design defect claims brought on theories of strict

product liability and negligence fail for lack of expert testimony. Defendant raises a separate

argument that summary judgment is warranted based on Plaintiff’s inability to establish

causation – that Plaintiff’s careless use of the Polisher was actually to blame for the accident.

A. The Defendant Makes an Unpersuasive Daubert Motion

The Defendant fails to make a compelling argument for striking the expert testimony and

opinions offered by Calderon. Defendant does not formally attack the qualifications of

Calderon.2 Rather, Defendant focuses its Daubert challenge on the methods employed by

Calderon in reaching his conclusions. Defendant further attacks the conclusion reached by

Calderon, and, specifically, conclusions reached on the issue of causation that it avers do not

“fit” the facts of the case. (MSJ page 14.) Stated in the most concise form, when determining

the admissibility of expert testimony in the face of a Daubert challenge, courts have categorically

evaluated Fed. R. Evid. 702 requirements by assessing (1) the expert’s qualifications to render

the opinions, (2) the reliability of the expert’s methods, and (3) the “fit” of the expert’s methods

to the facts of the case (i.e., whether the expert’s testimony will assist the finder of

fact).3 Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2000).

2 Defendant indicates that for the purpose of its dual motion for summary judgment and Daubert

motion, it does not dispute the qualifications of Andres Calderon, Ph.d. (MSJ page 16 n.22.) A review of

his Curriculum Vitae indicates that Calderon is a biomechanical and biomedical engineer. (Curriculum

Vitae of Andres J. Calderon, SJM, Ex. I, ECF No. 17-13.)

3 The Daubert standard has been incorporated and codified into Fed. R. Evid. 702.

Defendant specifically places at issue the second and third elements of the legal approach that

district courts employ for evaluating Daubert challenges.

In acting as a gatekeeper under Rule 702, the district court must screen the purportedly

scientific evidence to ensure that any and all such proffered evidence is relevant, reliable and

helpful to the trier of fact. Schneider, 320 F.3d at 404. The district court’s inquiry is one of

flexibility in which the focus rests solely on the principles and methods used by the expert, not

on the conclusions drawn from them. Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S.

579, 594-95 (1993). Rule 702 provides that “[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: (a) the expert’s scientific, technical, or other specialized knowledge 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.

“[T]he reliability analysis applies to all aspects of an expert’s testimony.” Heller v. Shaw

Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999). An expert’s opinion is reliable when it is based

on “good grounds,” In re Paoli R.R. Yard PCB Litig. (Paoli II), 35 F.3d 717, 744 (3d Cir. 1994),

i.e., it is “based on the methods and procedures of science rather than on [a] subjective belief or

unsupported speculation.” Furlan v. Schindler Elevator Corp., 516 F. App’x 201, 205 (3d Cir.

2013). The focus is not upon the expert’s conclusions, indeed the test for reliability is not one of

correctness, but upon the expert’s methodology. Paoli II, 35 F.3d at 746. The issue is whether

the evidence should be excluded because “the flaw is large enough that the expert lacks ‘good

grounds’ for his or her conclusions.” Id.

The Court of Appeals for the Third Circuit in Paoli II, enumerated eight factors that a

district court may examine when determining reliability, yet they “are neither exhaustive nor

applicable in every case.” Kannankeril v. Terminix Int'l., Inc., 128 F.3d 802, 806-07 (3d Cir.

1997). The factors include: (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. Paoli II, 35 F.3d

at 742 n.8.

For expert testimony to “fit”, there must be a logical relationship between the proffered

testimony and the factual issues involved in the case. Paoli, 35 F.3d 743, 745. The “fit” element

“goes primarily to relevance.” Daubert, 509 U.S. at 591. To be admissible, the expert testimony

must assist the trier of fact in resolving a factual dispute. Id. With respect to the “fit” prong, the

expert must “apply his experience reliably to the facts; his opinions must be well-reasoned,

grounded in his experience, and not speculative.” Sargent v. Cmmw. of Pa., No. 13-730, 2015

U.S. Dist. LEXIS 145035, *3 (M.D. Pa. Oct. 26, 2015) (quoting Roberson v. City of Phila., No.

99-3574, 2001 U.S. Dist. LEXIS 2163, *14 (E.D. Pa. Mar. 1, 2001)). The Court acknowledges

that the standard for analyzing fit is “not that high.” Premier Comp Sols. LLC v. UPMC, No. 15-

0703, 2019 U.S. Dist. LEXIS 19814, *8-9 (W.D. Pa. Feb. 7, 2019) (citing Paoli II, 35 F.3d at

745). Yet, a court must “examine the expert’s conclusions in order to determine whether they

could reliably follow from the facts known to the expert and methodology used.” Heller, 167

F.3d at 153.

1. Applying the Daubert Standard, the Court Will Not Find Calderon’s

Methodology Unscientific or Unreliable

Defendant attacks the scientific methodology employed by Calderon primarily by arguing

that he failed to conduct physical testing on the Polisher either in the field or in a laboratory.

Defendant takes specific issue with the fact that Calderon failed to attempt to recreate the

accident. (MSJ page 17-18.) The Court finds this argument unpersuasive.

By a preponderance of the evidence, Plaintiff carried his burden of proof and established

that Calderon’s testimony is based on reliable scientific methodology. Calderon has a Bachlor’s

Degree in Mechanical Engineering and a Master’s Degree and Doctorate in Biomedical

Engineering. (Curriculum Vitae of Andres J. Calderon, SJM, Ex. I, ECF No. 17-13.) A review

of his expert report illustrates that Calderon reviewed Plaintiff’s deposition transcript which

explains his version of how the accident occurred. (Calderon Report page 1-3.) Calderon’s

expert report further established that Calderon examined, measured, and photographed the

Polisher. (Id. page 4.) Calderon also reviewed the instruction manual, and the testimony of

other individuals who were deposed in this matter – including the defense expert witness. (Id.)

Finally, Calderon compared the Polisher to other models made by other manufactures that were

designed with enclosed spindles. Calderon confirmed his methodology and approach as outlined

in his expert report when he sat for an expert deposition in this matter. (Calderon Deposition.)

The fact that Calderon failed to attempt to entangle an electric cord in the spindle shaft of

the Polisher to recreate the accident does not render his opinions unreliable as defined by the

Daubert standard. Calderon’s opinions appear to be based on his practical experience as a

certified engineer, and his application of generally accepted principals in engineering to the facts

of this case.

2. Applying the Daubert Standard, the Court Will Not Preclude the Causation

Opinions Offered by Calderon

Defendant argues that the causation opinions offered by Calderon are unreliable because

he did not witness the accident, and it argues that he merely relies on the testimony of the

Plaintiff to formulate his causation opinions. (SJM page 18, 21.) Defendant points out that it is

unclear where the loose electric cord was located prior to the accident, and how it purportedly

became entangled in the Polisher. (Id.) Defendant further suggests that the loose electric cord

could have become entangled in the pad of the Polisher instead of the spindle shaft. (Id.)

The Court is not persuaded that the causation opinions offered by Calderon should be

precluded under the Daubert standard. Plaintiff admits that the accident occurred quickly while

he was distracted, and that he is uncertain about how the accident occurred. (DiDonato

Deposition page 121-122, 124.) At deposition, however, Plaintiff clearly testified that a loose

electric cord became wrapped around the spindle shaft of the Polisher which entangled his right

ring finger thereby severing the tip. (Id.) Calderon’s causation opinions about the flat sided,

uncovered shaft of the Polisher spindle creating a hazard can properly be based on Plaintiff’s

account of the accident. Overall, the Court believes that Defendant’s challenges to Calderon’s

testimony present questions concerning the underlying factual foundation and basis for his

opinions that are properly resolved by the jury after considering the conflicting evidence

presented by both parties at trial. Daubert, 509 U.S. at 595-596 (“[V]igorous 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.”).

B. Claims of Design Defect Based on Theories of Strict Product Liability and

Negligence Survive Summary Judgment as well as Claims for Breach of Implied

Warranty of Merchantability

Plaintiff has come forward with sufficient evidence of design defect to survive

Defendant’s motion for summary judgment. Plaintiff’s testimony as to how the accident

occurred in conjunction with the opinions offered by Calderon establishes that issues of material

fact remain on a “risk-utility” product liability design defect theory. Calderon offers the opinion

that reasonably priced, feasible design alternatives could have been employed by Defendant to

design the Polisher with a covered spindle shaft. Therefore, the Court will not enter summary

judgment on Plaintiff’s product liability claims.

In its Motion for summary judgment, Defendant offers little explanation or argument for

why it believes that negligent design theories or theories for breach of an implied warranty of

merchantability should be dismissed from this action. In light of the fact that the Court will not

strike Calderon’s expert opines, the Court will not enter summary judgment on these claims.

Plaintiff’s account of how the accident occurred in conjunction with Calderon’s expert testimony

creates issues of material fact as to Plaintiff’s negligence and implied warranty claims.

C. The Court Will Not Enter Summary Judgment by Finding as a Matter of Law that

the Plaintiff’s Carelessness or Failure to Follow the Instruction Manual was the

Cause of the Accident

Defendant argues that summary judgment is warranted because Plaintiff’s carelessness

was the true cause of the accident. (SJM page 27-28.) It cites the fact that Plaintiff admittedly

failed to turn the Polisher off before responding to the co-worker or person who was trying to get

his attention. (Id.) Defendant further argues that Plaintiff failed to keep a clean work area when

he permitted the loose electric cord to remain in the workspace where he was operating the

Polisher.

The Court will leave theories of comparative negligence or causation as issues to be

developed at trial. It will not grant summary judgment based on a theory that the Defense will

present at trial or its affirmative defenses. Where the loose electric cord was located or whether

the Plaintiff kept a clean workplace might be relevant but is not dispositive of issues in this case.

See Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir 2007); Wright v. Ryobi

Techs, Inc., 175 F. Supp. 3d 439, 448-49 (E.D. Pa. 2016).

IV. CONCLUSION

The record as it stands is sufficient to withstand Defendant’s dual motion for summary

judgment and Daubert motion. Therefore, for the above stated reasons, Defendant’s motions will

be denied.

BY THE COURT:

/s/ John Milton Younge

Judge John Milton Younge