# COTE v. SCHNELL INDUSTRIES

> District Court, M.D. Pennsylvania · November 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10412465

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412465

## How later opinions describe it (automated extraction)

- holding that for the “fit” prong of the Daubert analysis, “expert testimony based on assumptions lacking factual foundation in the record is properly excluded”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAYTON COTE, No. 4:18-CV-01440

Plaintiff, (Chief Judge Brann)

v.

SCHNELL INDUSTRIES,

Defendant.

MEMORANDUM OPINION

NOVEMBER 8, 2022
In advance of trial in this strict products liability case concerning a machine
involved in a workplace accident that nearly severed Plaintiff Dayton Cote’s hand,
the parties filed competing motions in limine. Although the Court grants Cote’s
motions to preclude evidence and argument on parties and claims that have been
removed from this suit, the remaining motions—most notably, Defendant Schnell
Industries’ motions that simply restate arguments this Court previously considered
and rejected—are denied.
I. BACKGROUND
On February 27, 2016, Cote was injured while working at a transfer yard in
Wysox, Pennsylvania, moving “frac sand” (i.e., sand that oil and gas companies
use in hydraulic fracturing, or “fracking,” operations) from railcars to tractor-
trailers for delivery to fracking customers.1 Cote and his co-workers used a piece of
equipment called a transloader, which opened a sliding gate at the bottom of the

railcars, causing the sand to flow freely onto a conveyor belt that ultimately
deposited the sand on the trailers.2 Because the sand inside the railcars was wet, it
clogged and did not flow from the railcar to the transloader’s conveyor belt.3 Cote

reached his hand through the railcar gate to dislodge the clumped sand, but at that
moment, his co-worker activated the machine’s “power takeoff” (“PTO”), which
opened and closed the railcar’s sliding gate with a hydraulic lever.4 The gate
slammed shut on Cote’s hand, nearly severing it from his arm.5

After the accident, Cote initiated this suit against four defendants:
(1) Schnell, the manufacturer of the transloader involved in the incident—a model
TLX36; (2) FB Industries, Schnell’s exclusive distributor in North America and

the company that sold the TLX36 transloader to Cote’s employer; (3) U.S. Silica
Company, the owner of the quarry where the frac sand originated; and (4) Norfolk
Southern Corporation, the company that transported U.S. Silica’s sand from its
quarry to Cote’s worksite.6 In his Amended Complaint, Cote advanced two

products liability claims against Schnell and FB Industries, sounding in negligence

1 Doc. 272 ¶ 26; see also Doc. 146-3, Ex. E (U.S. Silica-Shale Rail Contract).
2 Doc. 272 ¶ 21; see also Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report).
3 Doc. 241-1, Ex. 1 (Feb. 7, 2020, D. Cote Dep.) 96:23–97:6.
4 Id. at 194:16–195:14.
5 Doc. 241-2, Ex. 2 (Feb. 6, 2020, C. Spencer Dep.) 93:22–95:5.
and strict liability, and separate negligence claims against U.S. Silica and Norfolk
Southern.7

In support of his claims, Cote secured the services of several expert
witnesses, including engineering expert Michael Tarkanian, P.E., vocation expert
Steven D. Shedlin, and economics expert David L. Hopkins.8 Tarkanian opined on

the TLX36 transloader’s alleged design defects, whereas Shedlin and Hopkins
issued opinions about Cote’s lost earning capacity, actual lost earnings, and future
lost earnings.9
The Defendants likewise produced expert witnesses. Relevant here, Schnell

presented an engineering expert of its own, Albert de Richemond, who disputed
many of Tarkanian’s findings.10
Following discovery, the Defendants moved for summary judgment.11 Those
motions were denied.12 Shortly thereafter, U.S. Silica and Norfolk Southern agreed

to settle the claims against them.13 FB Industries followed suit six months later.14

7 Doc. 51.
8 See Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report); Doc. 263-8, Ex. 8 (Mar. 20, 2020, S.
Shedlin Report); Doc. 263-9, Ex. 9 (Mar. 23, 2020, D. Hopkins Report).
9 Id.
10 See Doc. 282-7, Ex. 5 (Jan. 11, 2021, A. de Richemond Report).
11 Doc. 143 (Norfolk Southern’s motion for summary judgment); Doc. 144 (FB Industries’
motion for summary judgment); Doc. 146 (U.S. Silica’s motion for summary judgment);
Doc. 150 (Schnell’s motion for summary judgment).
12 Doc. 186; Doc. 187.
13 See Doc. 204.
In July 2022, Schnell filed a Daubert motion seeking to preclude
Tarkanian’s expert testimony.15 The Court largely denied this motion the following

month.16 Schnell did not move to exclude Cote’s other expert witnesses—namely,
Shedlin and Hopkins—and Cote did not file a Daubert motion challenging the
admissibility of Schnell’s engineering expert, de Richemond.

With leave of Court, Cote then filed a Second Amended Complaint, which
considerably narrowed the scope of this case.17 Specifically, Cote removed the
settled Defendants—U.S. Silica, Norfolk Southern, and FB Industries—as well as
its negligence claim against Schnell.18 As such, this case proceeds toward trial with

only one claim (strict products liability) against one defendant (Schnell).19
II. LAW
A motion in limine “is a device for obtaining rulings on the admissibility of
evidence prior to trial.”20 Typically, motions in limine are made “for the purpose of

prohibiting opposing counsel from mentioning the existence of, alluding to, or
offering evidence on matters so highly prejudicial to the moving party that a timely
motion to strike or an instruction by the court to the jury to disregard the offending

15 Doc. 225. FB Industries filed a separate Daubert motion to exclude Tarkanian’s report and
testimony, Doc. 222, but it reached a settlement with Cote just prior to the Court’s ruling on
the Daubert motions. See Doc. 265.
16 Doc. 266; Doc. 267.
17 Doc. 272.
18 Id.
19 Id.
20 Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 667 (Pa.
Super. 2007) (citing Packel and Poulin, Pennsylvania Evidence, § 103.3 at 12) (internal
matter cannot overcome its prejudicial influence on the jurors’ minds.”21 However,
parties can also file motions in limine to admit certain evidence, thereby clarifying

in advance of trial the universe of admissible material and the scope of permissible
topics and lines of inquiry.22
Although motions in limine may serve as a useful pretrial tool that enables

more in-depth briefing than would be available at trial, a court may defer ruling on
such motions “if the context of trial would provide clarity.”23 Indeed, motions in
limine “often present issues for which final decision is best reserved for a specific
trial situation.”24 Thus, certain motions, “especially ones that encompass broad

classes of evidence, should generally be deferred until trial to allow for the
resolution of questions of foundation, relevancy, and potential prejudice in proper
context.”25 The United States Court of Appeals for the Third Circuit instructs that

“pretrial Rule 403 exclusions should rarely be granted . . . [as] a court cannot fairly
ascertain the potential relevance of evidence for Rule 403 purposes until it has a
full record relevant to the putatively objectionable evidence.”26 Regardless, “in

21 United States v. Davis, 208 F. Supp. 3d 628, 632 (M.D. Pa. 2016) (citing O’Rear v. Fruehauf
Corp., 554 F.2d 1304, 1306 (5th Cir. 1977)).
22 See, e.g., United States v. Singleton, 458 F. App’x. 169, 171–73 (3d Cir. 2012) (holding that
the District Court “did not abuse its discretion” in granting the government's “pre-trial motion
in limine to admit certain evidence of other crimes, wrongs, or acts pursuant to Federal Rule
of Evidence 404(b)”); Tourtellote v. Eli Lilly and Co., 636 F. App’x. 831, 854–55 (3d Cir.
2016) (holding that the District Court did not abuse its discretion in denying plaintiff’s motion
in limine “to include evidence of [the defendant's] conduct towards other employees”).
23 Frintner v. TruePosition, 892 F. Supp. 2d 699, 707 (E.D. Pa. 2012).
24 Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518 n.10 (3d Cir. 1997).
25 Leonard v. Stemtech Health Sciences, Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013).
limine rulings are not binding on the trial judge, and the judge may always change
his mind during the course of a trial.”27

III. ANALYSIS
A. Cote’s Motions in Limine
Before the Court now are, among other things, six motions in limine filed by
the Plaintiff, Dayton Cote. Cote’s first, third, and fourth motions pertain to

evidence of his conduct—specifically, whether Cote acted negligently or recklessly
when using, or assumed the risk of injury from, the TLX36 transloader.28 Cote’s
second and fifth in limine motions concern evidence of negligence by settled

Defendants U.S. Silica and Norfolk Southern.29 And in his final motion, Cote asks
the Court to preclude Schnell from presenting certain evidence from its
engineering expert, Albert de Richemond.30 For the reasons provided below, the
Court grants Cote’s first five motions, but denies the sixth.

1. Cote’s Allegedly Negligent or Highly Risky Conduct
Cote’s first, third, and fourth motions in limine concern evidence and
argument about whether his conduct contributed to the accident.31 Specifically,

Cote moves to preclude Schnell from arguing that the accident was caused by

27 Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).
28 Doc. 236 (Cote’s First Motion in Limine); Doc. 240 (Cote’s Third Motion in Limine);
Doc. 242 (Cote’s Fourth Motion in Limine).
29 Doc. 238 (Cote’s Second Motion in Limine); Doc. 244 (Cote’s Fifth Motion in Limine).
30 Doc. 246 (Cote’s Sixth Motion in Limine).
31 Doc. 236 (Cote’s First Motion in Limine); Doc. 240 (Cote’s Third Motion in Limine);
Cote’s negligence or that he assumed the risk of injury from, or recklessly misused,
the TLX36 transloader.32 The Court addresses each argument in turn.

a. Negligent Conduct
First, Cote moves to preclude Schnell from arguing or presenting testimony
that Cote’s negligence caused the accident.33 According to Cote, his allegedly
negligent conduct is relevant only if this conduct was the sole cause of the accident

and unrelated to the alleged defect—a showing Schnell cannot satisfy.34 Schnell
disagrees, arguing that Cote’s conduct is admissible as relevant to the issues of
causation and defective design (under both the consumer expectation and risk

utility standards).35 The Court agrees with Cote.
Under Pennsylvania law, a defendant generally “cannot use contributory
negligence concepts to excuse a product’s defect or reduce recovery by comparing
fault in a strict product’s liability action.”36 Although evidence of a plaintiff’s

conduct or the conduct of a third party “may be relevant as it relates to
causation”—i.e., “to prove the accident was the result of a superseding cause”—
evidence of a party’s “ordinary negligence” is admissible only if offered “to show

that the accident at issue was solely the result of [the negligent] conduct.”37 A

32 Id.
33 Doc. 240 (Cote’s Third Motion in Limine).
34 Doc. 241 at 1, 9–11.
35 Doc. 286 at 10–15.
36 Sullivan v. Werner Co., 253 A.3d 730, 748 (Pa. Super. 2021); see also Jara v. Rexworks Inc.,
718 A.2d 788, 793 (Pa. Super. 1998) (“[I]t is well-founded in Pennsylvania that questions of
negligence should not be introduced in products liability actions.”).
plaintiff’s or third party’s negligent conduct “is not relevant if the product defect
contributed in any way to the harm.”38

For this, the Court finds instructive the Superior Court of Pennsylvania’s
ruling in Sullivan v. Werner Company. In that case, the plaintiff was injured while
attempting to install specialty siding on the exterior of a building; the plaintiff was

elevated some distance off the ground, standing on a scaffold designed and
manufactured by the defendant, when the scaffold platform collapsed beneath him
like a “trapdoor.”39 The plaintiff alleged that the platform and deck pins used to
secure it were designed defectively.40 In response, the defendant sought to argue at

trial that the accident was caused by the plaintiff’s negligence—that is, the
plaintiff’s failure to properly assemble the scaffold.41 The trial court precluded the
defendant from arguing for, or introducing evidence about, the plaintiff’s
contributory negligence, and the Superior Court affirmed.42 The Superior Court

explained that the defendant’s “theory of [the plaintiff’s] negligence—that he did
not set up the scaffold correctly—directly relates to the product,” and therefore the
plaintiff’s conduct was not the “sole cause” of the accident.43

38 Id.
39 253 A.3d at 735.
40 Id. at 750.
41 Id. at 749.
42 Id. at 748–50.
In reaching this conclusion, the Superior Court distinguished its prior ruling
in Madonna v. Harley Davidson, Inc., a strict liability action concerning the front

wheel brakes on a motorcycle.44 In Madonna, the Superior Court affirmed the trial
court’s decision permitting the defendant to introduce evidence of the plaintiff’s
contributory negligence because “the evidence was admitted to show that the

accident resulted solely from plaintiff’s intoxication, which was unrelated in any
way to the product.”45 The Superior Court in Sullivan held that unlike Madonna,
the defendant “fail[ed] to explain how Sullivan’s alleged failure to properly
assemble the scaffold showed that none of the alleged product defects contributed

in any way to the accident.”46
Here, Schnell’s theory of Cote’s negligence—that he reached his hand
through the railcar gate without first deenergizing the TLX36 transloader—relates

directly to the alleged product. Cote argues that the TLX36 transloader is defective
because “it cannot isolate, deenergize, and lockout its [PTO] so that workers can
safely unload jammed sand from a railcar’s underside door without risk of the door
closing.”47 Schnell responds that Cote acted negligently because “he knew of the

danger posed by putting his hand through the hopper gate while the machine was
energized.”48 Because the Cote’s alleged negligence cannot be causally

44 Id. at 749–50 (citing Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508 (Pa. Super. 1998)).
45 Id. (citing Madonna, 708 A.2d at 508).
46 Id. at 750.
47 Doc. 290 at 6.
distinguished from the elements of the transloader Cote considers defective,
Schnell is unable to show “that none of the alleged product defects contributed in

any way to the accident.”49
Apart from the issue of causation, Schnell argues that evidence of Cote’s
negligent conduct is admissible as relevant to the issues of defective design under

both the consumer expectation and risk-utility standards articulated by the
Supreme Court of Pennsylvania in Tincher v. Omega Flex, Inc.50 That’s incorrect.
Both the consumer expectation standard and the risk-utility standard concern the
knowledge and conduct of an “ordinary person.”51 As the Third Circuit held in

Surace v. Caterpillar, Inc., assessing the knowledge and conduct of the “ordinary
customer” is an “objective inquiry into whether the class of ordinary purchasers of
the product could avoid injury through the exercise of care in use of the product,
not whether this particular plaintiff could have avoided this particular injury.”52

The Third Circuit instructed that this objective inquiry is not “a vehicle for
injecting a plaintiff’s (alleged) failure to exercise due care into the case.”53

49 Sullivan, 253 A.3d at 750.
50 See Doc. 286 at 10–14.
51 See Tincher, 104 A.3d 328, 394 (Pa. 2014) (defining the “consumer expectations test” as
whether “the danger is unknowable and unacceptable to the average or ordinary consumer”),
397 (defining the risk-utility standard as whether “a ‘reasonable person’ would conclude that
the probability and seriousness of harm caused by the product outweigh the burden or costs of
taking precautions”).
52 111 F.3d 1039, 1051 (3d Cir. 1997). Although this opinion, issued in 1997, pre-dates Tincher,
it remains instructive as it analyzed the same factors guiding the Pennsylvania Supreme Court’s
Tincher ruling.
Following Tincher, district courts in this Circuit have affirmed that the “traditional
limitations placed on the admissibility of evidence of a product user’s alleged

negligence” remain intact: a defendant cannot offer evidence of a plaintiff’s
alleged own lack of due diligence to negate the plaintiff’s attempt to establish that
the product was defective.54

For these reasons, Cote’s third motion in limine is granted.
b. Affirmative Defenses
Although Pennsylvania courts place tight restrictions on defendants’
attempts to introduce evidence of plaintiffs’ ordinary negligence, it is well

established that “evidence of a plaintiff’s voluntary assumption of the risk, misuse
of a product, or highly reckless conduct is admissible insofar as it relates to the
element of causation.”55 Nevertheless, Cote asks the Court to preclude Schnell
from arguing or presenting testimony that Cote assumed the risk of injury or acted

recklessly and misused the TLX36 transloader.56 Given the “conceptual nuances
between assumption of the risk and highly reckless conduct,”57 the Court addresses
these affirmative defenses separately.

54 Rapchak v. Haldex Break Products Corp., 2016 WL 3752908, at *5–7 (W.D. Pa. July 14,
2016); see also Lehmann v. Louisville Ladder Inc., 2022 WL 2670811, at *2 (E.D. Pa. July 11,
2022) (holding that a plaintiff’s conduct using the product is not “relevant to a design defect
theory because the product, not the user’s conduct, is on trial”).
55 Sullivan, 253 A.3d at 748–49 (citation omitted).
56 Doc. 236 (Cote’s First Motion in Limine); Doc. 242 (Cote’s Fourth Motion in Limine).
To sustain the assumption of the risk affirmative defense, a defendant must
“prove that the risk was voluntarily undertaken in addition to being known.”58 That

said, “[w]here an employee, in doing a job, is required to use certain equipment as
furnished by the employer, this defense is unavailable.”59 Here, there is no dispute
that the accident occurred while Cote was on the job, using the TLX36 transloader
“furnished by [his] employer,” as his employer required.60 Accordingly, the Court

grants Cote’s motion to preclude Schnell from arguing or presenting evidence that
Cote assumed the risk of injury by placing his hand inside the railcar while the
TLX36 transloader remained energized.61

For the highly reckless conduct and product misuse affirmative defenses,
Pennsylvania courts emphasize “the inherent parallels between these concepts.”62
Indeed, “[b]oth misuse and highly reckless conduct involve a plaintiff’s

58 Jara, 718 A.2d at 795.
59 Id.; see also Staub v. Toy Factory, Inc., 749 A.2d 522, 530 (Pa. Super. 2000) (“[I]n a products
liability context, assumption of risk is no longer available as an affirmative defense in an
employment situation because the employee cannot voluntarily assume the risk where in doing
his job he is required to use equipment furnished by his employer.”).
60 Jara, 718 A.2d at 795.
61 In response, Schnell directs the Court to Reott v. Asia Trend, Inc., 55 A.3d at 1090–1101, and
Missimer v. Tiger Machine Co., LTD, 2005 WL 2396934 (E.D. Pa. Sept. 26, 2005) (Rice,
M.J.). But Reott is inapposite as it involves a customer using the allegedly defective product
for purely personal reasons; it did not involve an employee operating within the scope of his
employment when injured. 55 A.3d at 1090 (products liability suit concerning a hunting tree
stand, which the plaintiff assembled with his brother presumably in advance of hunting
season). Although Missimer involves a “machine [the plaintiff] operated during his
employment,” the opinion, issued by a Magistrate Judge, does not address Jara or its progeny.
2005 WL 2396934 at *1–2. Instead, the Magistrate Judge simply details the general rule that
“[a]ssumption of the risk is a defense in . . . strict products liability cases” in Pennsylvania. Id.
at *2. This opinion is neither binding on this Court nor legally sound. As such, it has no bearing
on this ruling.
unforeseeable, outrageous, and extraordinary use of a product.”63 To succeed on
these affirmative defenses, “the burden is on the defendant to demonstrate that the

injured party or decedent ‘knew or had reason to know of facts which created a
high degree of risk of physical harm to himself or that he deliberately proceeded to
act, or failed to act, in conscious disregard of that risk.’”64 Further, the defendant

must show that “the highly reckless conduct was the sole or superseding cause of
the injuries sustained.”65
First, Cote correctly argues that Schnell “cannot establish that [his] accident
would have occurred despite the curing of the [TLX36] transloader’s defect.”66 As

explained, Cote has presented uncontroverted evidence supporting his position that
the transloader’s defects constitute an essential predicate without which the
accident would not have occurred. And even Schnell’s engineering expert, Albert

de Richemond, testified that the proposed alternative design would have prevented
the accident.67 Accordingly, to prove reckless conduct or product misuse, Schnell

63 Id.; see also id. at 1101 (“[h]ighly reckless conduct is that which occurs when the plaintiff
would have been injured despite the curing of any alleged defect, or is so extraordinary and
unforeseeable as to constitute a superseding cause.”); Childers v. Power Line Equipment
Rentals, Inc., 681 A.2d 201, 208 (Pa. Super. 1996) (defining product “misuse” as an
“unforeseeable or outrageous” use of the product).
64 Reott, 55 A.3d at 1101 (quoting Childers, 681 A.2d at 208)).
65 Id.
66 Doc. 243 at 8.
67 See Doc. 241-5, Ex. 5 (Feb. 18, 2021, A. de Richemond Report) at 96:2–18 (“Q. Okay. You
would agree with me that if there was such a lockout system in place that shut off all of the
hydraulic circuits except for the belt while clearing a jam that would have completely
eliminated the possibility that this accident could occur, correct? . . . A. My answer was yes.”)
would need to demonstrate that Cote’s conduct was “so extraordinary and
unforeseeable as to constitute a superseding cause.”68

To that end, Cote’s asserts that his conduct does not, as a matter of law,
qualify as an unforeseeable or outrageous use of the TLX36 transloader.69 Cote
contends that the record shows that he “could not deenergize the transloader’s PTO

while unclogging the sand,” and that he “only used his hand to dislodge the sand
because—at the time of the accident—that was the only effective means available
to Cote to accomplish his work.”70 Schnell counters that Cote and his co-workers
“were instructed on the dangers of putting their hands through the rail hopper car

gate, [and] instructed not to put their hands through the gate and, if necessary, to
use a tool to stick through the hopper car gate when needed to address sand flow
issues.”71 Schnell believes that based on this evidence, a jury could conclude that

Cote “knew or had reason to know of facts which created a high risk of physical
harm to himself” and that he “deliberately proceeded to act . . . in conscious
disregard of that risk.”72
Courts recognize that “misuse and causation are questions of fact,” and

therefore they should be left to the jury unless “the facts are not in dispute.”73 As

68 Reott, 55 A.3d at 1101 (internal quotation marks and citation omitted).
69 See Doc. 243 at 8.
70 Doc. 292 at 10.
71 Doc. 284 at 13.
72 Reott, 55 A.3 at 1101 (quotation marks and citation omitted).
73 Nathan v. Techtronic Industries North America, Inc., 92 F. Supp. 3d 264, 275 (M.D. Pa. Feb.
this Court held in its November 2021 summary judgment ruling, there are disputed
facts relevant to the question of whether Cote’s conduct was unforeseeable or

outrageous:
[T]he parties disagree on what safety instructions
regarding wet sand in the hopper cars Cote and [his co-
workers] received prior to the accident, and what Cote
reasonably should have believed regarding the safety of
clearing wet sand by hand and the operation of the PTO
controls.74
Given these factual disputes, the Court declines to remove this question from the
province of the jury.
Second, Cote argues that regardless of whether his conduct qualifies as
“highly reckless,” this evidence should be deemed inadmissible because Schnell
cannot show that his conduct was the sole or superseding cause of the injuries he
sustained.75 On this, Cote directs the Court to two rulings by the Superior Court of
Pennsylvania: Jara v. Rexworks and Clark v. Bil-Jax, Inc.76

74 See Doc. 186 at 27 (comparing Doc. 174 at 9 (“Shale Rail employees were instructed on the
dangers of putting their hands through the hopper car gate, were instructed not to put any
appendage through the hopper car gate and, if necessary, to use a tool to stick through the
hopper car gate in necessary to address sand flow issues.”) with Doc. 185 at 3 (“Plaintiff
testified that he was never trained on getting wet sand out of a hopper car, . . . [and] the record
demonstrates that there was no ‘wet sand protocol’ (i.e., ‘use only tools to dislodge wet sand’)
at the time of the incident.”); and Doc. 156 at 28 (“Cote acknowledged he knew he could be
injured if the hopper gate closed with this hand inside and that the gate could be closed with
his hand inside while the transloader was operating.”) with Doc. 168 at 28 (“[W]hile Plaintiff
knew a hopper gate could injure a person, he also knew that the transloader’s conveyer belt
. . . needed to keep running in order to clear the sand. Further, Plaintiff testified that it was his
belief that the person on the ground—i.e., Plaintiff—was the only person who could operate
the PTO controls.”)).
75 Doc. 243 at 8–11.
In Jara, the plaintiff was injured on a construction site while cleaning a
conveyor belt manufactured by the defendant; the plaintiff was climbing the

conveyor when his co-worker pushed the start button, causing the conveyor to
throw the plaintiff to the ground.77 At trial, the defendant offered evidence of the
plaintiff’s and the co-worker’s conduct to prove the accident was the result of a

superseding cause—namely, “someone started the belt moving”—and the trial
court submitted the question of superseding cause to the jury.78 The Superior Court
ruled that the jury should have received neither the evidence nor the question, as
the plaintiff’s and his co-worker’s conduct “was irrelevant to the [issue] of product

defect.”79 The Superior Court explained that “it could not be established that the
accident was solely a result of [the plaintiff’s] or another’s conduct” because
“[h]ad the product not been defective, [the plaintiff] would have had warning or
been provided a safe location once the belt was activated.”80

In Clark, the plaintiff advanced a strict products liability claim, arguing that
scaffolding manufactured by the defendant was defectively designed; the plaintiff’s
decedent was killed “when the metal scaffolding he was holding onto during its

relocation at a construction site came into contact with high voltage power lines.”81
The Superior Court held that the trial court “erred in granting [the defendants]

77 718 A.2d at 790.
78 Id. at 793–94.
79 Id. at 793.
80 Id. at 793–94.
permission to present evidence of improper actions of the decedent and his
coworkers at trial.”82 On the issue of recklessness, the Superior Court found that

the defendants “offered nothing . . . which would show” that the decedent’s use of
the scaffolding was either unforeseeable or outrageous, and regardless, evidence of
the decedent’s conduct has “relevance only if the defect were not the sole cause of
the harm.”83 According to the Superior Court, “[t]hat was not the case herein; had

the defect been cured prior to the accident, the decedent would not have been
electrocuted.”84
As this Court reads it, in both Jara and Clark, the Superior Court improperly

conflated the admissibility inquiries for a plaintiff’s negligence and recklessness,
holding that the defendants could not offer evidence that the plaintiffs’ respective
conduct constituted “superseding causes” because in neither case could the

defendant establish that the accident was “solely” a result of the plaintiff’s
conduct.”85 As discussed, although evidence of a plaintiff’s ordinary negligence is
admissible only if the defendant can show that the plaintiff’s conduct was solely
responsible for the accident,86 the Pennsylvania Supreme Court in Reott v. Asia

Trend explained that to advance highly reckless conduct and product misuse
affirmative defenses, the defendant is required to prove either “sole cause” or

82 Id. at 925.
83 Id.
84 Id.
85 See Jara, 718 A.2d at 793–94; Clark, 763 A.2d at 925.
“superseding cause.”87 Indeed, the Pennsylvania Supreme Court took pains to
articulate the differences between these distinct legal concepts:

[A] defendant can affirmatively plead and prove “sole
cause,” i.e., that a curing of any defect would not have
prevented the injury because only the plaintiff’s conduct
caused the injury; or “superseding cause,” i.e., that the
plaintiff acted in such an outrageous and unforeseeable
fashion that the conduct superseded any “but for” or legal
causation the product contributed to the injuries.88
But as Justice Todd notes in her dissent, the majority then “conclude[d] these
theories do not differ substantively, and, as such, need not be considered separately
nor treated differently.”89 Emphasizing the “substantial overlap” between sole and
superseding cause in the “real world,” the majority explains that “Pennsylvania
jurisprudence is most faithfully adhered to when trial courts instruct juries solely
regarding ‘factual cause’”—that is, sole cause.90
This Court finds the Pennsylvania Supreme Court’s approach to this issue
perplexing. It seems insensible to, in the rule, insert a disjunctive delineating two
distinct legal concepts, while, in a footnote, explaining that these concepts are
substantively indistinguishable. Be that as it may, this Court is not in the business

of making laws; instead, it must follow the guidance of the prevailing judicial
authority.

87 Reott, 55 A.3d at 1100.
88 Id.
89 Id at 1102 (Todd, J., dissenting).
Consistent with the Pennsylvania Supreme Court’s ruling in Reott, and the
Pennsylvania Superior Court’s decisions in Jara and Clark, because Schnell cannot

show that Cote’s conduct was the sole cause of the accident, Schnell cannot
advance its reckless conduct and product misuse affirmative defenses.
Accordingly, Cote’s first and fourth motions in limine are granted.

2. The Settled Defendants’ Alleged Contributory Negligence
In his second and fifth motions in limine, Cote asks the Court to preclude
Schnell from attempting to apportion negligence liability to U.S. Silica or Norfolk
Southern and reading to the jury Cote’s prior allegations regarding U.S. Silica’s

negligence.91 Although Cote and Schnell debate several possible bases for
prohibiting evidence of the settled Defendants’ contributory negligence—such as
whether expert testimony is required to establish a prima facie case against U.S.
Silica and Norfolk Southern92—this motion turns on a recent procedural

development: Cote’s filing of the Second Amended Complaint.93 By excising its
prior negligence claims and advancing to trial with only the strict liability cause of
action, Cote has rendered questions about U.S. Silica’s and Norfolk Southern’s

negligence immaterial.
As a preliminary matter, Cote’s prior allegations of U.S. Silica’s negligence
contained in the inoperative Amended Complaint do not constitute binding judicial

91 Doc. 238 (Cote’s Second Motion in Limine); Doc. 244 (Cote’s Fifth Motion in Limine).
92 Doc. 239 at 5–6; Doc. 283 at 8–11.
admissions. The Third Circuit has long held that an “amended complaint
supersedes the original and renders it of no legal effect, unless the amended

complaint specifically refers to or adopts the earlier pleading.”94 Although a
superseded pleading may be offered as evidence “rebutting a subsequent contrary
assertion,”95 the relevance and admissibility of the superseding pleading is
contingent on “a party’s assertion of contrary factual positions”96—and, even then,

“the amending party may offer evidence to rebut its superseded allegations.”97
Here, Cote’s Amended Complaint has been superseded by the Second
Amended Complaint, and the Second Amended Complaint contains no “contrary

factual positions” that these superseded allegations could be offered to rebut.98 The
Second Amended Complaint advances a single count of strict liability against
Schnell; there are no allegations about U.S. Silica’s conduct, negligent or
otherwise.99 Therefore, the allegations of U.S. Silica’s negligence—which are

contained only in the Amended Complaint—are “of no legal effect.”100

94 West Run Student Housing Associates, LLC v. Huntington National Bank, 712 F.3d 165, 171
(3d Cir. 2013) (internal quotation marks and citation omitted).
95 Id. at 172–73 (citing Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956); InterGen
N.V. v. Grina, 344 F.3d 134, 144 –45 (1st Cir. 2003); 188 LLC v. Trinity Industries, Inc., 300
F.3d 730, 736 (7th Cir. 2002); Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996);
Andrews v. Metro North Commuter Railroad Co., 882 F.2d 705, 707 (2d Cir. 1989); Raulie v.
United States, 400 F.2d 487, 526 (10th Cir. 1968)).
96 Id. at 172.
97 188 LLC, 300 F.3d at 736.
98 West Run, 712 F.3d at 172.
99 See Doc. 272.
Moreover, even if the allegations of U.S. Silica’s and Norfolk Southern’s
negligence did constitute judicial admissions, these allegations and all evidence

related thereto would nevertheless be inadmissible. Because the sole operative
claim in this case is Cote’s strict liability cause of action against Schnell,101
substantive evidence is admissible only if relevant to that claim. On that, the

analysis underlying this Court’s ruling to preclude evidence of Cote’s alleged
negligence applies equally to questions about the settled Defendant’s contributory
negligence.
Here, as in Sullivan, the alleged third-party negligence (in this case, U.S.

Silica and Norfolk Southern providing wet sand unfit for transloading) and the
accident that followed relate directly to the alleged defect. As Cote argues, the wet
sand stuck in the railcar and the TLX36 transloader’s inability to lockout its PTO

allegedly resulted in the hopper gate slamming shut on Cote’s arm while he was
reaching inside the railcar to pry loose the wet sand.102 Per Cote’s formulation of
the case, the settled Defendants’ alleged negligence and the TLX36 transloader’s
alleged defect constitute distinct yet interrelated factual predicates, both of which

were required for Cote’s injury to occur.
As Schnell simply seeks to introduce evidence consistent with Cote’s initial
arguments about U.S. Silica’s and Norfolk Southern’s contributory negligence,

101 Id.; see also Doc. 287 (Schnell’s Answer to Cote’s Second Amended Compl.).
Schnell cannot show that the accident was caused solely by the settled Defendant’s
conduct, “unrelated in any way to the product.”103 Cote’s second and fifth motions

in limine are therefore granted; at trial, Schnell will not be permitted to introduce
evidence of U.S. Silica’s and Norfolk Southern’s negligent conduct, or argue that
this negligence excuses the TLX36 transloader’s alleged defects or necessitates a
reduced recovery.104

3. The TLX36 Transloader and OSHA’s Definition for
Lockout/Tagout Device
In his final motion in limine, Cote asks the Court to preclude Schnell from
presenting evidence that the TLX36 transloader’s ignition key qualifies as a
“lockout/tagout device” per Occupational Safety and Health Administration
(“OSHA”) guidelines.105 But, as Schnell argues, Cote’s motion concerns “the

weight to be given to the parties’ respective experts,” not the admissibility of their
opinions.106
The Federal Rules of Evidence provide that relevant evidence—that is,

evidence that “has any tendency to make a fact more or less probable than it would
be without the evidence”107—is admissible unless the United States Constitution, a
federal statute, or the Rules themselves provide otherwise.108 To that end, Rule 403

103 Sullivan, 253 A.3d at 749–50 (citation omitted).
104 See id. at 748.
105 Doc. 246 (Cote’s Sixth Motion in Limine).
106 Doc. 282 at 7.
107 Fed. R. Evid. 401(a).
permits courts to exclude relevant evidence if its probative value is substantially
outweighed by a danger of, among other things, unfair prejudice, confusing the

issues, or misleading the jury.109
The admissibility of expert testimony, however, is governed by Rules 702
and 703. The Supreme Court of the United States expanded upon these rules in

Daubert v. Merrell Dow Pharmaceuticals, Inc., delegating to district courts a
gatekeeping responsibility centered on the twin concerns of “reliability” (i.e., the
basis or “good grounds” for the expert opinion) and “helpfulness” (i.e., the
opinion’s “fit” or “relevance”).110 Applying Daubert, the Third Circuit has

cautioned district courts against making admissibility determinations based on its
assessment of competing expert testimony: “a district court may not make winners
and losers through its choice of which side’s experts to admit, when all experts are
qualified.”111 The Third Circuit instructs district courts that as long as an expert’s

testimony “rests upon good grounds, based on what is known, it should be tested
by the adversary process—competing expert testimony and active cross-
examination—rather than excluded from jurors’ scrutiny for fear that they will not

grasp its complexities or satisfactorily weigh its inadequacies.”112 This admonition

109 Fed. R. Evid. 403.
110 509 U.S. 579, 589–92 (1993).
111 States v. Mitchell, 365 F.3d 215, 245 (3d Cir. 2004).
112 Id. at 244 (internal quotation marks and citations omitted); see also Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (“A party confronted with an adverse expert
witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the
reflects the Third Circuit’s understanding that “[e]xperts with diametrically
opposed opinions may nonetheless both have good grounds for their views.”113

Here, the parties’ engineering experts offer competing opinions on whether
the TLX36 transloader’s ignition key qualifies as a lockout/tagout device under the
relevant OSHA rules and regulations. According to Cote’s expert, Michael

Tarkanian, a keyed ignition does not meet OSHA’s standards for lockout/tagout
devices because it is not “singularly identified” as a lockout device or the only
device “used for controlling energy,” and it is “used for other purposes.”114
Conversely, Schnell’s expert, Albert de Richemond, opines that the TLX36

transloader’s “key lock was effectively an OSHA lockout device in that it
deactivated the diesel engine, the hydraulic system that controlled the conveyor
and PTO and ultimately the rail car hopper gate.”115

Unsurprisingly, both parties dispute the opinions propounded by the other’s
expert witness. But although Schnell filed a Daubert motion challenging the
admissibility of Tarkanian’s report and testimony (which this Court denied),116
Cote declined to file a corresponding motion to exclude de Richemond’s report and

testimony. Instead, Cote now argues that de Richemond’s opinions should be

113 Mitchell, 365 F.3d at 245.
114 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 3 (citing OSHA 1910.147(c)(5)(ii)).
115 Doc. 282-7, Ex. 5 (Jan. 11, 2021, de Richemond Report) at 6.
116 See Doc. 225 (Schnell’s Daubert motion); Doc. 267 (Order largely denying Schnell’s Daubert
excluded under Rule 403 as “blatantly misleading and unfairly prejudicial.”117 The
Court is not persuaded. Lacking a well-reasoned and fully briefed Daubert motion,

the Court will not bar the admission of de Richemond’s expert opinions simply
because Cote disagrees with them. Instead, Cote can test de Richemond’s
conclusions “by the adversary process—competing expert testimony and active
cross-examination.”118

B. Schnell’s Motions in Limine
For its part, Schnell filed eight separate motions in limine, primarily
concerning issues this Court addressed previously when it denied Schnell’s

summary judgment and Daubert motions. Aside from Schnell’s fifth motion,
which (in part) seeks relief consistent with the Court’s Daubert ruling, these in
limine motions are either procedurally improper or without merit—or both. As
such, they are denied.

1. TLX36 Transloader Manual: Alleged Inadequate Warnings
In its first motion in limine, Schnell asks the Court to preclude Cote from
presenting evidence or otherwise arguing that the TLX36 transloader lacked
adequate warnings and that this alleged defect caused Cote’s injuries.119 Schnell

asserts that Tarkanian “offers no opinion that the machine lacked adequate
warnings or that the lack of adequate warnings on the machine caused or

117 Doc. 291 at 3.
118 Mitchell, 365 F.3d at 244.
contributed to [Cote’s] accident,” and therefore Cote “should be precluded from
expressing a contention at trial that the machine lacked adequate warnings which

was the cause of [Cote’s] injuries.”120 But Schell misstates Tarkanian’s opinion.
Moreover, this motion is little more than an effort to relitigate an issue this Court
considered and rejected when it mostly denied Schnell’s Daubert motion—a

motion that itself sought to rehash arguments the Court rejected on summary
judgment.
In its Daubert motion, Schnell argued that Cote’s engineering expert,
Michael Tarkanian, should not be allowed to present his opinion that “[t]he manual

provided by [Schnell] and [FB Industries] for the TLX36 [transloader] contributes
to unsafe practices using the machine” because it “never mentions ‘lock out’ or
‘tag out’” and contains “incomplete and contradictory” safety instructions that

“contribut[e] to a lack of clarity regarding safety for the user, and is symptomatic
of the lack of proper lock out capabilities in the TLX 36 [transloader].”121
According to Schnell, Tarkanian’s opinion “is not relevant to any issue in the case”
because the opinion’s relevance “depends on whether the manual caused or

contributed to the incident” and the evidence does not establish this causal
connection.122 The Court rejected this argument, citing its ruling on summary
judgment that Tarkanian’s opinion regarding the inadequate warnings and

120 Doc. 249 at 1–2.
121 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 16–17.
misrepresentations in the TLX transloader manual is “relevant to a particular
disputed factual issue central to Cote’s claim that the transloader was defective

under the consumer expectation standard.”123
Having failed to exclude Tarkanian’s opinion regarding the inadequate
warnings and misrepresentations in the TLX transloader manual, Schnell now asks

the Court to pretend this opinion does not exist. This Court won’t do that. Having
previously failed to convince the Court that this opinion is inadmissible for want of
causation, Schnell again asks the Court to exclude the opinion on this basis. This
Court won’t do that either. The motion is denied.

2. Non-Compliance with OSHA Standards
As with the first, Schnell’s second in limine motion simply restates twice-
rejected arguments. Specifically, Schnell argues that Cote “should be precluded
from presenting evidence and contentions at trial that the transloader failed to

comply with OSHA and ANSI [i.e., the American National Standards Institute]
standards related to a lockout device,” asserting that the ignition key constitutes an
“effective lockout” and “the absence of an OSHA or ANSI compliant lockout was

not the cause of Cote’s injury.”124 But Schnell raised this argument on summary
judgment and then again in its Daubert motion, and it proved unavailing both

123 Doc. 266 at 19 (internal quotation marks, brackets, and citation omitted); see also Doc. 186 at
27–30.
times.125 As this Court wrote in its memorandum opinion largely denying Schnell’s
Daubert motion, “[a] reasonable jury presented with Tarkanian’s expert opinion

explicitly linking Cote’s injuries and the absence of a proper lock out device on the
TLX36 transloader could conclude that the transloader’s alleged defects were a
substantial factor in causing Cote’s injuries.”126 Accordingly, Cote will be

permitted to present evidence that the TLX36 transloader failed to comply with
OSHA and ANSI standards.127
3. Tarkanian’s Proposed Alternative Design
In its third motion in limine, Schnell asks the Court to preclude Cote from

presenting evidence regarding Tarkanian’s proposed alternative design for the
TLX36 transloader128—a lock out device, such as a solenoid in the hydraulic
circuit coupled with a dedicated locking switch, that would prevent the railcar
hopper gate from closing while permitting the conveyer belt and other components

of the machine to continue operating.129 According to Schnell, this alternative
design “is not, by [Tarkanian’s] own admission, safer than turning off the ignition
key.”130 That is not correct.

125 See Doc. 186 at 22–24; Doc. 266 at 10–14.
126 Doc. 266 at 13.
127 In this motion, Schnell also seeks to preclude Cote from presenting evidence that the TLX36
transloader’s manual did not comply with OSHA and ANSI standards. Doc. 251 at 8–9. As
explained, this argument was likewise considered and rejected in this Court’s Daubert opinion.
See Doc. 266 at 17–19. Cote may present this evidence as well.
128 Doc. 252.
129 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 2–3.
During his deposition, Tarkanian testified that the design of the TLX36
transloader “discourages” users from turning off the machine to unclog inside the

railcar: “if you shut the machine off, the conveyor would not work, which would
mean sand would stop moving, and you would lose the ability to accurately weigh
the sand moving on the transloader.”131 Tarkanian concluded that this design defect
“directly contributed to the injury of Mr. Cote.”132 And then Tarkanian offered the

following testimony about the “best” and “safest” alternative design:
[B]ecause the belt needs to keep running during
transloading, in my opinion the best design, the safest
design would be to isolate, have the ability to isolate
components of the transloader like the PTO and then in
that case you could put a valve in the hydraulic line of
the PTO that could isolate energy to the PTO while the
rest of the machine runs and that’s done with
commercially available components that are talked about
in my report.133
Notwithstanding this testimony, Schnell insists that Tarkanian conceded that
the proposed alternative design is not safer than the current TLX36 transloader,
seizing upon the following exchange:
Q. Wouldn’t it have been safer if the machine had been
turned off entirely using the ignition key, and the key
removed, than to activate a disconnect of the hydraulic
circuit controlling the power takeoff?

131 Doc. 251-6, Ex. 6 (Jan. 15, 2021, M. Tarkanian Dep.) at 34:12–35:14, 36:21–37:12.
132 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 17.
A. Yes, because it would have neutralized, it would have
shut down all of the energy to the entire machine.134
But Schnell omits the remainder of Tarkanian’s answer: “[b]ut as we’ve talked
about again and again, that’s problematic during operation of these things.”135 As

Tarkanian explained repeatedly in his deposition, it is his position that because the
conveyor belt needs to keep running to move the dislodged sand, the current design
of the TLX36 transloader is unsafe because it “discourages” users from using the
ignition key to power off the machine; the “best” and “safest” design would require

allowing the user to power off the PTO (thereby preventing the railcar hopper gate
from closing) while permitting the rest of the machine, including the conveyor belt,
to continue operating.136 Indeed, that is the heart of Tarkanian’s opinion.

This Court has already admonished Schnell about “mischaracterize[ing]
Tarkanian’s deposition testimony, cherry picking select quotes to create an
impression inconsistent with Tarkanian’s actual sworn statements.”137 It does so,
again, in this writing.

4. Engineering Input During the Design Process
Schnell’s fourth motion in limine concerns Tarkanian’s opinion that
Schnell’s failure to hire and employ third-party engineers and lack of experience
with OSHA, ANSI, and other relevant safety standards contributed to the TLX36

134 Id. at 91:21–92:5.
135 Id. at 92:5–7.
136 Id. at 34:12–35:14, 36:21–37:12, 72:7–22.
transloader’s defective design.138 Specifically, Schnell seeks to preclude Cote from
introducing evidence “concerning a lack of engineers at Schnell, engineering input

with the design, or review of the Schnell transloader or testing post-design,”
arguing that there is “no connection” between these alleged deficiencies and Cote’s
accident.139 But, again, Schnell presented this same argument in its Daubert

motion—and the Court rejected it. Because this Court held that “Tarkanian’s
opinion that the TLX36 transloader was defective because it lacked a lock out
device—and that this defect contributed to Cote’s injuries—is admissible,” it ruled
that his opinion that Schnell’s “failure to employ or otherwise engage engineers led

to this defective design is admissible as well.”140 The Court affirms this ruling
here. The motion is denied.
5. Other Design Defects
As with Schnell’s first, second, and fourth in limine motions, Schnell’s fifth

motion in limine concerns issues this Court disposed of when it largely denied
Schnell’s Daubert motion. Specifically, Schnell moves to preclude evidence
related to Tarkanian’s opinions about (a) “the design of the electrical circuit to the

scale,” (b) the “location of controls for the PTO,” and (c) the location of the “dust
collector” and stairs.141 As the Court explained in its Daubert Memorandum

138 Doc. 254; see also Doc. 255 at 4 (citing Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report)
at 2).
139 Doc. 255 at 1.
140 Doc. 266 at 17.
Opinion, Tarkanian’s opinions about the design of the electrical circuit and
location of the PTO controls are admissible; his opinions about the location of the

dust collector and stairs is not.142 Consistent with this ruling, Cote may offer
evidence and argument about the design of the electrical circuit and location of the
PTO controls, but he cannot present evidence or argument about the location of the
dust collector or stairs.143

6. Known or Knowable Danger
In its sixth motion in limine, Schnell asks the Court to preclude Cote from
presenting evidence at trial “that the danger associated with putting one’s hand

through a railcar gate while the transloader and gate opener were energized was
unknown and unknowable.”144 According to Schnell, “[t]he danger, in fact, was
knowable and known to Cote and, as such, [he] should not be permitted to contend
to the contrary.”145 But this argument is both without merit and procedurally

improper.

142 Doc. 266 at 20–24.
143 In this motion, Schnell also restates the objections to evidence about the TLX36 transloader
manual that he raised in his first and second motions in limine. Compare Doc. 257 at 11 (“With
regard to the manual for the transloader, there is no evidence to support a contention that it
caused or contributed to [Cote’s] accident because Cote never saw the manual before his
accident and Spencer, the operator, also never consulted with the manual.”), with Doc. 251
(“Whether the manual did or did not comply with OSHA or ANSI standards because it did not
instruct Cote or Spencer on a proper lockout method, or was confusing and lacked clarity[,]
could not have been a factor in Cote’s accident because Cote never saw the manual and says
he had no access to it and Spencer also never consulted the manual.”). As explained, the Court
finds these objections to be without merit.
144 Doc. 259 at 1.
Although Schnell frames this as an “evidentiary issue,” the motion is
dispositive to one of Cote’s theories of liability: because the “consumer

expectation standard” for defective condition liability “depends on whether ‘the
danger is unknowable and unacceptable to the average or ordinary customer,’”146
prohibiting Cote from offering evidence and arguing that the danger was knowable

or known would prevent Cote from advancing this theory of liability. It is
altogether unsurprising, then, that Schnell presented the same argument he raises
here—that “[t]here is no evidence to support a contention that the transloader was
in a defective condition under the consumer expectation standard”147—as a basis

for summary judgment in its prior dispositive motion.148 Indeed, it appears Schnell
simply copied and pasted the language from the relevant portion of his summary
judgment moving brief, as the moving brief for this motion in limine repeats this
language essentially verbatim.149

146 Id. at 7 (quoting Tincher, 104 A.3d at 387).
147 Id. at 8.
148 See Doc. 156 (Schnell’s Mot. for Summary Judgment Br.) at 27–29 (“There is no evidence of
any express or implied representation regarding the transloader.”).
149 Compare Doc. 156 (Schnell’s Mot. for Summary Judgment Br.) at 27–29 (“Far from the danger
being unknowable, employees of Shale Rail were instructed on the dangers of putting their
hands through the rail hopper car gate, were instructed not to put their hands through the gate
and, if necessary, to use a tool to stick through the hopper car gate when needed to address
sand flow issues. Cote’s expert acknowledges Cote was aware of the danger or risk of putting
his hand through the railcar gate when the transloader and the PTO were energized.”), with
Doc. 259 at 8–9 (“Employees of Shale Rail were instructed on the dangers of putting their
hands through the rail hopper car gate, were instructed not to put their hands through the gate
and, if necessary, to use a tool to stick through the hopper car gate when needed to address
sand flow issues. Cote’s expert also acknowledges Cote was aware of the danger or risk of
This presents two problems for Schnell. First, the Court rejected this
argument on summary judgment. After reviewing the summary judgment record

and considering the parties’ competing positions, this Court held that “there is a
genuine factual dispute as to whether the danger of the PTO closing the gate on a
worker clearing jammed sand from the railcar was unknowable and unacceptable
to the average or ordinary customer.”150 The Court therefore declined to grant

summary judgment for failure to establish the presence of a defective condition
under the consumer expectation standard.151
Schnell attempts to minimize the significance of this prior ruling, arguing

that it “has no bearing on the issue of preclusion of evidence concerning whether
the danger associated with putting one’s hand through a railcar gate while the
transloader and related gate opener were energized was unknown or
unknowable.”152 The Court respectfully disagrees. Although motions for summary

judgment and motions in limine serve different functions,153 the instant motion
seeks the same relief based on the same factual record as Schnell’s appropriately
filed (if ultimately unsuccessful) motion for summary judgment. Accordingly, just

as Schnell’s summary judgment motion failed, so to must this motion in limine.

150 Doc. 186 at 28.
151 Id.
152 Doc. 296 at 8–9.
153 See Bradley v. Pittsburgh Board of Education, 913 F.2d 1064, 1069 (3d Cir. 1990) (“Unlike a
summary judgment motion, which is designed to eliminate a trial in cases where there are no
genuine issues of fact, a motion in limine is designed to narrow the evidentiary issues for trial
Second, the substantial overlap between the instant motion and Schnell’s
prior dispositive motion proves that it is, in truth, a motion for summary judgment

masquerading as a motion in limine. Indeed, Schnell all but admits as much.154
Applying the Third Circuit’s ruling in Bradley v. Pittsburgh Board of Education,
district courts in this Circuit have deemed improper motions in limine that “seek to

preclude all evidence that would support the other party’s claims,” explaining that
such motions are “essentially acting like . . . motion[s] for summary judgment.”155
That is precisely what Schnell has attempted to do in this case.
For these reasons, Schnell’s sixth motion in limine is denied.

7. The Term “Lock-Out”
For its seventh motion in limine, Schnell moves to preclude Cote from using
the term “lockout”—a term of art defined by OSHA and ANSI—arguing that the

term “is not genuinely relevant” to Cote’s claims, and, therefore, its use at trial
would confuse the issues, mislead the jury, and unfairly prejudice Schnell.156
Specifically, Schnell asserts that Cote’s strict products liability claim “is based not

154 See Doc. 259 at 8 (“There is no evidence to support a contention that the transloader was in a
defective condition under the consumer expectation standard.”).
155 Davis v. General Accident Insurance Co. of America, 2000 WL 1780235, at *4 (E.D. Pa. Dec.
4, 2000); see also Dubois Country Club, LTD v. Depositors Insurance Co., 2022 WL
13837784, at *6–7 (W.D. Pa. Oct. 21, 2022) (denying defendant’s motion in limine because it
is “actually a dispositive motion that the [defendants] filed after the deadline for such motions
passed”: “because the [defendants] are asking the Court to find that the [plaintiffs] have failed
to offer sufficient evidence of their damages claim” and “because damages is an essential
element of a claim for breach of contract, the [defendants] are effectively asking the Court to
dispose of the [plaintiff’s] breach of contract claim altogether”).
on the absence of a ‘lockout’ device on the [TLX36] transloader but rather on the
idea that the transloader lacked an energy isolating feature that would prevent

energization of the PTO to close [the] railcar gate while [Cote’s] hand was inside
the railcar.”157 But that’s incorrect.
In his expert report, Tarkanian explains that he believes the TLX36

transloader was defectively designed in that, among other things, it has no means
“for a user to properly lock out sources of hazardous energy,” as is required to be
“in compliance with industry safety standards.”158 According to Tarkanian, the
TLX36 transloader’s “keyed ignition is not a lock out device” as defined in OSHA

1910.147(c)(5)(iii) because it is not “singularly identified as a lockout device” or
“the only device used for controlling energy, as separate devices can be used to
operate the lights, scales, and hydraulics on the transloader.”159 As discussed,

Tarkanian believes this alleged design defect “directly contributed to Cote’s
injury” because Cote was unable to prevent the railcar gate from closing without
completely powering off the TLX36 transloader, thereby stopping the conveyor
belt from moving from the railcar to the scale whatever sand Cote unclogged.160 To

prevent accidents like the one that caused Cote’s injury, Tarkanian proposes an
alternative design: a “solenoid in the hydraulic circuit” that prevents “hydraulic

157 Id. at 1.
158 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 2.
159 Id. at 3.
160 Id. at 17; see also Doc. 251-6, Ex. 6 (Jan. 15, 2021, M. Tarkanian Dep.) at 34:12–35:14, 36:21–
pressure from flowing to the PTO when activated” (i.e., an energy-isolation
device), coupled with a “dedicated locking switch” (i.e., a lock out device), which

together “would ensure that the hazardous energy from the PTO hydraulics could
be safely lockout out and isolated while other work on the machine continued.”161
In denying Schnell’s Daubert motion, the Court ruled that these opinions are
admissible.162 As the term “lock out” is central to, and fully enmeshed in,

Tarkanian’s expert opinions, the Court will permit Cote to use the term at trial. The
term is relevant to Cote’s claims, and its use at trial will not mislead the jury,
unfairly prejudice Schnell, or confuse the issues—indeed, given the prominence of

the term “lock out” in Tarkanian’s report, the witnesses’ depositions, and the
parties’ briefing, prohibiting the parties from using the term would be far more
confusing than permitting it.

8. Lost Earning Capacity, Lost Wages After Recovery, and
Losses Related to Total Disability
In his final motion in limine, Schnell asks the Court to preclude Cote from
presenting evidence about the losses he suffered or will suffered due to the
injury.163 Properly understood, Schnell is seeking to exclude the testimony and
reports of Cote’s vocation and economics experts—Steven D. Shedlin and David

161 Doc. 247-4, Ex. 4 (Nov. 3, 2020, Tarkanian Report) at 7 (cleaned up).
162 Doc. 266 at 10–14.
L. Hopkins, respectively.164 The Court denies the motion, as it is both untimely and
without merit.

As a preliminary matter, Schnell challenges the factual foundation of, and
the methodologies underlying, Shedlin’s and Hopkins’s opinions about Cote’s lost
earning capacity, actual lost earnings, and future lost earnings.165 Specifically,

Schnell argues that “the facts of record do not support a basis for lost earnings or
lost earning capacity”; Sheldon’s opinion, upon which Hopkins’s opinion is
predicated, is “based upon pure speculation”; and Cote’s “model concerning lost
past and future earning capacity is not sufficient to establish that [Cote’s] earning

power has been or will be reduced in the future.”166 These arguments concern the
admissibility of expert testimony, and, as such, they should have been raised in a
Daubert motion.167 Schnell instead raises them for the first time in a motion in
limine filed on August 18, 2022.168 Daubert motions were due July 8, 2022.169

Accordingly, this motion is dismissed as untimely.

164 See Doc. 263.
165 Id. at 6–8.
166 Id. at 7; Doc. 297 at 2.
167 See Meadows v. Anchor Longwall and Rebuild, Inc., 306 F. App’x 781, 790 (3d Cir. 2009)
(holding that for the “fit” prong of the Daubert analysis, “expert testimony based on
assumptions lacking factual foundation in the record is properly excluded”); In re Paoli R.R.
Yard PCB Litigation, 35 F.3d at 742 n.8 (detailing the factors district courts should “take into
account” when deciding on the reliability of expert testimony in a Daubert analysis, including
whether the method employed “consists of a testable hypothesis,” “has been subject to peer
review,” and “is generally accepted”).
168 Doc. 262.
Moreover, even if the motion was timely, it would nevertheless fail. As
proof of his lost earning capacity, Cote offers the report and opinions of his

vocation expert, Shedlin, who calculated Cote’s pre-injury earning capacity,
identified Cote’s current professional prospects based on his medical situation and
corresponding physical limitations, assessed Cote’s current earning capacity, and

then determined lost earning capacity by subtracting Cote’s current earning
capacity from his pre-injury capacity.170 As proof of his past and future lost
earnings, Cote presents the report and opinions of his economics expert, Hopkins,
who used Shedlin’s findings to calculate Cote’s past lost earnings from the date of

accident through March 2020, and then employed the “total offset method” to
calculate Cote’s future lost earnings as well as his lost fringe benefits and
household services.171

In seeking to exclude this expert testimony, Schnell does not challenge
Shedlin’s or Hopkins’ qualifications, the reliability of the methodologies they
employ, or their application of those methodologies.172 Instead, Schnell disputes
certain factual assumptions underlying these opinions, arguing that there is “no

evidence to indicate” that Cote “sought employment since 2016” or “was disabled
from working during this period,” and likewise no “evidentiary support that Cote
has been unable to be hired or disabled from being employed because of his

170 Doc. 263-8, Ex. 8 (Mar. 20, 2020, S. Shedlin Report) at 3–4.
171 Doc. 263-9, Ex. 9 (Mar. 23, 2020, D. Hopkins Report) at 3–7.
injury.”173 But Shedlin, relying on Cote’s medical records, identifies possible
positions Cote could work, and then he calculates Cote’s current earning capacity

by using the Economic Research Institute’s salary figures for those positions.174
As the Third Circuit has emphasized, “[t]he test of admissibility is not
whether a particular [expert] opinion has the best foundation or whether it is

demonstrably correct”; rather, “the test is whether the particular opinion is based
on valid reasoning and reliable methodology.”175 Importantly, “[t]his standard is
not intended to be a high one.”176 Parties seeking to admit expert evidence “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.”177
Cote has met this burden. To the extent Schnell disputes the factual

foundation underlying Shedlin’s and Hopkins’s opinions, he can raise these
concerns on cross examination.
IV. CONCLUSION
At this stage in the litigation, Cote and Schnell fundamentally disagree about

what this case is about and thus what evidence is relevant and admissible at trial.
To Cote, this is a strict products liability action concerning the TLX36

173 Doc. 6–7.
174 See Doc. 263-8, Ex. 8 (Mar. 20, 2020, S. Shedlin Report) at 4.
175 Oddi, 234 F.3d at 145–46.
176 Id. at 145.
transloader’s alleged design defects; the machine itself is on trial, not the conduct
of Cote or any third party. To Schnell, this case is about apportioning blame; the

jury will have to determine whether the accident that nearly severed Cote’s hand
was caused by defects with the transloader or instead by Cote’s and his colleague’s
misuse of the machine or the alleged negligence of the settled Defendants. Per

Pennsylvania law, Cote is correct.
Because Cote excised from the operative complaint all allegations and
claims of negligence, and Schnell cannot establish that the TLX36 transloader’s
alleged defects played no role in the accident, Schnell will not be permitted to

introduce evidence of, or present arguments that, Cote’s or any third party’s
conduct contributed to the accident. Cote’s first five motions in limine are granted.
And as Schnell’s fifth in limine motion seeks (in part) relief consistent with this

Court’s Daubert ruling, that motion is granted in part. All other motions in limine
are denied.
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412465. Public record. Not legal advice.