Oddi v. Ford Motor Co.

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

10-13-2000

Oddi v. Ford Motor Co.

Precedential or Non-Precedential:

Docket 99-3406

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Filed October 13, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3406

DAVID ODDI; ERIN ODDI, His Wife

v.

FORD MOTOR COMPANY; GRUMMAN

ALLIED INDUSTRIES INC.; GRUMMAN

OLSON BODIES, INC.; OLSON BODIES, INC.

v.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF TRANSPORTATION,

Third Party Defendant

DAVID ODDI,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

Civil Action No. 95-cv-01341

District Judge: Hon. Robert J. Cindrich

Argued: May 9, 2000

Before: GREENBERG and McKEE, Circuit Judges,

and GARTH, Senior Circuit Judge

(Opinion filed: October 13, 2000)

PAUL A. TERSHEL, ESQ. (Argued)

MARY CHMURA CONN, ESQ.

Tershel & Associates

Helena Professional Building

55 South Main Street

Washington, PA 15301

Attorneys for Appellant

JOHN E. WALL, ESQ. (Argued)

MICHAEL F. NERONE, ESQ.

Dickie, McCamey & Chilcote, P.C.

Two PPG Place, Suite 400

Pittsburgh, PA 15222-5402

Attorneys for Appellee,

Ford Motor Company

JOHN H. WILLIAMS, ESQ. (Argued)

Gorr, Moser, Dell & Loughney

437 Grant Street

1300 Frick Building

Pittsburgh, PA 15219

Attorneys for Appellee,

Grumman Allied Ind., et al.

OPINION OF THE COURT

McKEE, Circuit Judge.

David Oddi was catastrophically injured in a one-vehicle

accident when the truck he was driving struck a guardrail

and a bridge abutment. Thereafter, he filed two separate

product liability actions in state court. He sued Ford Motor

Company, which designed and manufactured the chassis of

the truck, and he brought a separate action against

Grumman Allied Industries, Inc. (then known as Olson

Bodies, Inc), which designed and manufactured thefinished

truck. Ford and Grumman removed the actions to the

district court where they were consolidated.1 Ford and

_________________________________________________________________

1. Jurisdiction in the district court was premised upon diversity of

citizenship. 28 U. S. C. S 1332. Oddi is a citizen of Pennsylvania. Ford

is a Delaware corporation and Grumman is a New York corporation.

2

Grumman eventually moved for summary judgment based

upon their contention that Oddi could not establish a prima

facie case because his proposed expert testimony failed to

satisfy the requirements of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U. S. 579 (1993). The district

court agreed and granted summary judgment in favor of

Ford and Grumman, and against Oddi. The district court

subsequently denied Oddi's motion for reconsideration, and

this appeal followed. For the reasons that follow, we will

affirm.

I. FACTS AND PROCEDURAL HISTORY.

On June 21, 1993, Oddi was driving a bread truck owned

and maintained by Continental Baking Company. He was

proceeding northbound at exit 14 of Interstate 79 near

Pittsburgh, Pennsylvania, at approximately 55 to 60 miles

an hour when the truck struck a guardrail and bridge

abutment. Oddi's legs were crushed so badly by the force of

the accident that they both had to be amputated. Oddi's left

arm was also permanently injured.

The truck was a 1976 special order Ford M-5000

Stripped Chassis that Continental had ordered through a

Ford dealership for use as a bread delivery truck. When the

truck left Ford's possession and control it was comprised

only of basic component parts such as frame rails, axles,

engine, drive train, wheels and a front bumper. Continental

took delivery of the Stripped Chassis and delivered it to

Grumman for the design and manufacture of the finished

vehicle. Grumman designed and manufactured all

necessary aspects of the vehicle pursuant to Continental's

specifications. This included modifications to the occupant

compartment ("cab") and floor boards. Continental had

used the truck as a bread delivery truck from 1976 through

1993, and it had been driven for hundreds of thousands of

miles in that capacity before this accident occurred.2

The suits that Oddi filed after his accident asserted

_________________________________________________________________

2. It is impossible to determine exactly how many miles it had been

driven because the maintenance records are missing, and the odometer

had turned over an unknown number of times.

3

claims against Ford and Grumman under theories of strict

liability, negligence, breach of warranty and failure to warn.3

Oddi claimed Ford's defective design of the front bumper of

the bread truck allowed the underside of the truck to ride

up or "ramp" onto the guardrail and strike the bridge

abutment.4 He also claimed that after the truck ramped

onto the guardrail, the left front wheel of the truck hooked

over the rail preventing him from steering away from the

bridge abutment. He alleged that defects in the cab

(designed and manufactured by Grumman) had caused the

flooring to bend upon impact with the bridge abutment and

apply such force as to crush both his legs. He also alleged

that the truck rolled over and down an adjacent

embankment after it struck the bridge abutment.

Ford denied any design defects and also denied that the

truck ramped the guardrail. According to Ford, the truck

simply struck the guardrail and rolled over it. Similarly,

Grumman denied that the flooring was deficient or that it

caused any injury at all.5

Oddi retained two experts to support his contention that

his injuries were caused by defects in the manufacture and

design of the truck. John N. Noettl, an engineer, was

retained to testify about the defective design, and Leon

Kazarian, a bio-mechanist, was retained to testify about the

process by which Oddi received his injuries.

After deposing both of Oddi's experts, Ford and

Grumman moved for summary judgment. Ford argued that

all of Oddi's claims should be dismissed because Oddi's

proposed expert testimony could not survive the threshold

inquiry required under Daubert v. Merrell Dow

_________________________________________________________________

3. Oddi also asserted negligence claims against the Commonwealth of

Pennsylvania, Department of Transportation ("PennDOT") based upon

the design of the guardrails and the bridge abutment. However, the

record does not disclose the status of that action.

4. Oddi also asserted steering defects against Ford. However, after

discovery, he dismissed those claims.

5. Ford and Grumman also filed third-party complaints against PennDOT

in the removed action in district court. However, they subsequently

voluntarily dismissed that action. Consequently, PennDOT was no longer

a party in the district court action and is not a party in this appeal.

4

Pharmaceuticals, Inc., 509 U. S. 579 (1993), and, therefore,

Oddi could not establish a prima facie case. Grumman did

not initially make a specific challenge under Daubert.

Instead, Grumman initially argued only that Oddi's

evidence was either inadmissible or failed to satisfy Oddi's

burden of proof.

Oddi responded to the summary judgment motions by

filing a brief in opposition, an affidavit of Noettl, and

excerpts of Noettl's deposition testimony. Oddi did not

request an evidentiary hearing or oral argument, nor did he

submit anything else in response to Ford's Daubert

challenge.

After reviewing Oddi's submissions in opposition to the

summary judgment motions, Grumman filed a reply brief in

which it argued that Oddi still could not meet his burden

of showing that the truck was not crashworthy. Grumman

also challenged Oddi's experts under Daubert. Oddi

responded by filing a motion to strike Grumman's reply

brief claiming that the district court had not granted leave

to Grumman to file it. In the alternative, Oddi sought leave

to submit opposing affidavits if needed.

On March 31, 1999, the district court entered a

Memorandum Opinion in which it ruled that Oddi's experts

did not meet Daubert's admissibility standards. Absent the

testimony of those experts, Oddi could not establish a

prima facie case of liability, and the district court therefore

granted summary judgment in favor of Ford and Grumman.

Oddi filed a motion for reconsideration in which his

major argument was that the district court should have

held a hearing on the Daubert challenge before granting

summary judgment. However, the district court disagreed

and on September 2, 1999, denied his motion for

reconsideration. Oddi then sent a letter to the district court

enclosing a copy of our August 2, 1999 decision in Padillas

v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi

argued that Padillas required that an evidentiary hearing be

held so that he could meet the defendants' Daubert

challenges. However, the district court disagreed and issued

a supplemental Memorandum Opinion in which it held that

Oddi was not entitled to an evidentiary hearing.

5

This appeal followed.

II. THEORIES OF LIABILITY.

Although Oddi based his suits upon several different

theories of liability, he only appeals the district court's

grant of summary judgment on his crashworthiness and

negligent failure to test claims. We will begin our inquiry by

discussing each of those theories.

A. Crashworthiness.

"The term crashworthiness means the protection that a

motor vehicle affords its passenger against personal injury

or death as a result of a motor vehicle accident." Kuptez v.

Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. Super. 1994).

The doctrine "imposes liability on the manufacturer not for

causing the accident, but rather for failing to minimize the

injuries or even increasing the severity of the injuries

sustained in an accident brought about by a cause other

than the alleged defect." Habecker v. Clark Equipment Co.,

36 F.3d 278, 283 (3d Cir. 1994)("Habecker III"). "[T]he

crashworthiness doctrine permits a plaintiff to recover for

enhanced injuries, i. e., only for those injuries he can prove

he would not have sustained if he had been riding in a

crashworthy vehicle." Carrasquilla v. Mazda Motor Corp.,

963 F. Supp. 455, 458 (M. D. Pa. 1997)(citations and

internal quotations omitted). "[I]f enhanced injuries cannot

be shown, then no liability exists as to the manufacturer."

Id.

Crashworthiness is a subset of products liability law.6

Although the Pennsylvania Supreme Court has not yet

adopted the crashworthiness doctrine for products liability

cases,7 we have predicted that it would do so in an

appropriate case. See Habecker v. Clark Equipment Co., 942

_________________________________________________________________

6. "In a typical products liability action in Pennsylvania, a plaintiff

must

show: (1) the product was defective; (2) the defect existed while the

product was in the control of the manufacturer; and (3) the defect was

the proximate cause of the injuries." Habecker III, 36 F.3d at 284.

7. Because this is a diversity case, Pennsylvania products liability law

applies. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 413 (3d Cir. 1999).

6

F.2d 210 (3d Cir. 1991)("Habecker II").8 To establish a

cause of action on a theory of crashworthiness, a plaintiff

must show: (1) the design9 of the product was defective; (2)

an alternative, safer design that was practical existed; (3)

what injuries, if any, the plaintiff would have received had

the alternative design been used; and (4) the defective

design caused or exacerbated specific injuries. 10 Barker v.

Deere and Co., 60 F.3d 158, 161 n.3 (3d Cir. 1995)(citation

omitted).

B. Negligent Failure to Test.

Oddi alleged that Ford and Grumman were negligent for

"[f]ailing to do adequate, necessary and proper testing of

the vehicle prior to the sale which would have revealed the

dangerous condition of the product." Complaint, at P 4r.

Oddi refers to this theory of recovery as the tort of

"negligent failure to test." Oddi's Br. at 26. He claims that

its elements are as set forth in 1836 Callowhill Street v.

Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993).

Oddi argues that under 1836 Callowhill Street he can

recover under this theory if he establishes that: (1) the

manufacturer has a duty to test its product; (2) the

manufacturer breached that duty, i. e., the manufacturer

did not test; and (3) the breach or the failure to test was the

proximate cause of the plaintiff 's injury. Oddi's Br. at 26.

In 1836 Callowhill, the court made several assumptions

for purposes of ruling on a motion for summary judgment.

_________________________________________________________________

8. The Pennsylvania Superior Court accepted the crashworthiness

doctrine in 1994. Kupetz v. Deere & Co., Inc. , 644 A.2d 1213 (Pa. Super.

1994). The Pennsylvania Supreme Court has subsequently, referred to

the crashworthiness doctrine, but has not yet officially adopted it. See

Schroeder v. Commonwealth of Pennsylvania, Department of

Transportation, 710 A.2d 23, 28 n.8 (Pa. 1998).

9. We have noted that "[t]he theory of products liability is applied to

three types of defects: design, manufacturing and marketing (warnings).

The crashworthiness doctrine implicates the overtures of design defects."

Habecker III, 36 F.3d at 283 n.6.

10. It has been suggested that the third and fourth elements of the

crashworthiness doctrine are corollaries. Huddell v. Levin, 537 F.2d 726,

738 (3d Cir. 1976).

7

The court assumed that defendant's product was defective,

that the defect caused the alleged damage, and that the

defendant had a duty to adequately test the defective

product to discover the defect. Nevertheless, the court

granted summary judgment to the defendant as to

plaintiff 's negligence claim. The court concluded that

plaintiff did not "offer[ ] sufficient evidence of a breach of

that duty [to] create a genuine dispute of fact." Id. at 465.

Consequently, although the court stated, that "[n]egligent

failure to test is cognizable as a common law negligence

theory," 819 F. Supp. at 464-65, that decision cannot fairly

be said to support the proposition that a manufacturer has

a general duty to test a product to determine if it is

defective.

Therefore, even if 1836 Callowhill were precedential and

correctly stated the law of Pennsylvania, we would still be

compelled to conclude that Oddi has cited no authority that

establishes the principle that a manufacturer has a general

duty to test its product. We have found no authority to

support Oddi's contention that Pennsylvania recognizes an

independent tort for "negligent failure to test," and Oddi

has offered none.

Rather, it appears that Oddi's "negligent failure to test"

claim is, at bottom, nothing more than a routine products

liability case based on negligence, and that the claimed

negligence is the failure to test. Under Pennsylvania law, in

order for an injured party to establish a cause of action

against a manufacturer based upon the latter's breach of a

duty, "the plaintiff must prove, not only that the product

was defective and that the defect caused his[/her] injury,

but in addition, [the plaintiff must prove] that in

manufacturing or supplying the product the defendant

failed to exercise due care." Dambacher v. Malis, 485 A.2d

408, 424 (Pa. Super. 1984). Thus, Oddi must first establish

that the vehicle was defective.

Thus, whether we view Oddi's theory as crashworthiness

or negligence arising from a failure to test, he must

establish a defect in the design of the truck in order to

recover, and he must then show that that defect caused his

injuries. As noted above, he attempted to do this through

the proffered expert testimony of John N. Noettl and Leon

8

Kazarian, but the district court refused to admit their

expert testimony.

III. STANDARDS FOR ADMISSIBILITY OF

EXPERT TESTIMONY.

Federal Rule of Evidence 702 states:

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.

The Supreme Court amplified the operation and scope of

Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

supra. There, the Court held that scientific knowledge

requires

an inference or assertion . . . derived by the scientific

method. Proposed testimony must be supported by

appropriate validation -- i.e., "good grounds," based on

what is known. In short, the requirement that an

expert's testimony pertain to "scientific knowledge"

establishes a standard of evidentiary reliability.

Id. at 590. Rule 702 thus "clearly contemplates some

degree of regulation of the subjects about which an expert

may testify." Id. at 589. Consequently, the Court

established a "gatekeeping role for the [trial] judge." Id. at

597.

[T]he trial judge must determine at the outset,

pursuant to Rule 104(a),11 whether the expert is

proposing to testify to (1) scientific knowledge that (2)

will assist the trier of fact to understand or determine

a fact in issue. This entails a preliminary assessment

of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that

_________________________________________________________________

11. Fed. R. Evid. 104(a) provides: "Preliminary questions concerning the

qualification of a person to be a witness, the existence of a privilege,

or

the admissibility of evidence shall be determined by the court, subject to

the provisions of subsection (b)[pertaining to conditional admissions].

9

reasoning or methodology properly can be applied to

the facts in issue.

Id. at 592-93. The proponent must satisfy this burden "by

a preponderance of proof." Id. at 593 n.10.

Although "[m]any factors will bear on the inquiry," the

Court has set out some "general observations," Id. at 593,

that serve as guideposts in determining if proffered expert

testimony is sufficiently relevant and reliable to be

admissible.12 First, "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." Id. Second, the court

should consider "whether the theory or technique has been

subjected to peer review and publication." Id. Publication,

which is an element of peer review, "is not a sine qua non

of admissibility: it does not equate with reliability." Id. It

may, however, suggest "good science." Id. "The fact of

publication (or lack thereof) in a peer reviewed journal will

be a relevant, though not dispositive, consideration in

assessing the scientific validity of a particular technique or

methodology upon which an opinion is premised." Id. at

594. Third, "in the case of a particular scientific technique,

the court ordinarily should consider the known or potential

rate of error, and the existence and maintenance of

standards controlling the technique's operation." Id. Fourth,

and finally, "general acceptance" can have bearing on the

inquiry. Id. "Widespread acceptance can be an important

factor in ruling particular evidence admissible, and a

known technique which has been able to attract only

minimal support with the community may properly be

viewed with skepticism." Id. However,"general acceptance"

is "not a necessary precondition to the admissibility of

scientific evidence." Id. at 597. The Court also emphasized

that the "inquiry envisioned by Rule 702 is . . . a flexible

_________________________________________________________________

12. Obviously, evidence must first be relevant to be admissible. Relevant

evidence is evidence that helps "the trier of fact to understand the

evidence or to determine a fact in issue." Id. at 591. This consideration

of relevance has been described as one of "fit" or "helpfulness." It

requires "a valid scientific connection to the pertinent inquiry as a

precondition to admissibility." Daubert, at 591-92.

10

one," and noted that the "focus . . . must be solely on

principles and methodology, not on the conclusions they

generate." Id. at 595.

Shortly after the Supreme Court decided Daubert , we

applied its teachings in In re Paoli Railroad Yard PCB

Litigation, 35 F.3d 717 (3d Cir. 1994)("Paoli II"). There, we

concluded that Rule 702 has two major requirements;

"qualifications" and "reliability," and noted that an expert's

"qualifications" are interpreted liberally. In discussing

"Reliability" we listed the factors enunciated in Daubert but

noted the continued vitality of our prior analysis in United

States v. Downing, 753 F.2d 1224 (3d Cir. 1985). We held

that a "district court should take into account all of the

factors listed by either Daubert or Downing as well as any

others that are relevant," Paoli II, at 742, in conducting an

inquiry into the reliability of proposed expert testimony. The

factors that are relevant under Daubert and Downing

include: "(1) whether a method consists of a testable

hypothesis; (2) whether the method has been subjected 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, at 742 n. 8.

In Paoli II, we also stated that the expert's testimony

must "fit," in that it must assist the trier of fact. Id. at 743.

Admissibility thus depends in part upon "the proffered

connection between the scientific research or test result to

be presented and particular disputed factual issues in the

case." Id. This standard is not intended to be a high one,

nor is it to be applied in a manner that requires the

plaintiffs "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." Id. at 744. This is

a very important distinction. The test of admissibility is not

whether a particular scientific opinion has the best

11

foundation or whether it is demonstrably correct. Rather,

the test is whether the "particular opinion is based on valid

reasoning and reliable methodology." Kannankeril v.

Terminix International Inc., 128 F.3d 802, 806 (3d Cir.

1997). "The analysis of the conclusions themselves is for

the trier of fact when the expert is subjected to cross-

examination." Id.

Nonetheless, "conclusions and methodology are not

entirely distinct from one another." General Electric Co. v.

Joiner, 522 U. S. 136, 146 (1997). A court "must examine

the expert's conclusions in order to determine whether they

could reliably flow from the facts known to the expert and

the methodology used." Heller v. Shaw Industries, Inc., 167

F.3d 146, 153 (3d Cir. 1999). "A court may conclude that

there is simply too great a gap between the data and the

opinion proffered." Joiner, at 146; see also In re TMI

Litigation, 193 F.3d 613, 682-683 (3d Cir. 1999), opinion

amended by 199 F.3d 158 (3d Cir.), cert. denied sub nom.

General Public Utilities Corp. v. Abrams, ___ U. S. ___, 120

S. Ct. 2238 (2000) and Dolan v. General Public Utilities

Corp., 120 S. Ct. 2238 (2000).

Although Daubert was decided in the context of scientific

knowledge (whether evidence established a connection

between the defendant's drug and birth defects), Daubert

has since been extended to the kind of "technical or other

specialized knowledge," at issue here. See Kumho Tire Co.,

Ltd. v. Carmichael, 526 U. S. 137, 141 (1999) ("We conclude

that Daubert's general holding--setting forth the trial

judge's general `gatekeeping' obligation--applies not only to

testimony based on `scientific' knowledge, but also to

testimony based on `technical' and `other specialized'

knowledge."). The expert in Kumho Tire was an engineer

and the Court there framed the issue before it as"how

Daubert applies to the testimony of engineers and other

experts who are not scientists." Id. at 141.

We examine the specific testimony that was excluded

here against this background. "We afford a district court's

application and interpretation of Rule 702 plenary review,

Paoli II at 749, but we review the court's decision to admit

or reject testimony under an abuse of discretion standard.

Joiner, at 143. An abuse of discretion arises when the

12

district court's decision "rests upon a clearly erroneous

finding of fact, an errant conclusion of law or an improper

application of law to fact." Hanover Potato Products, Inc. v.

Shalala, 989 F.2d 123, 127 (3d Cir. 1993). An abuse of

discretion can also occur "when no reasonable person

would adopt the district court's view." Id. We will not

interfere with the district court's exercise of discretion

"unless there is a definite and firm conviction that the court

below committed a clear error of judgment in the

conclusion it reached upon a weighing of the relevant

factors." Id.

IV. THE CHALLENGED EXPERT TESTIMONY.

A. John N. Noettl.

Noettl, the accident reconstruction/design engineer, was

to testify that the truck was defectively designed. 13 Noettl's

proffered testimony is contained in a preliminary report

dated June 16, 1997; an amended report dated December

4,1997; an affidavit dated September 23, 1998; and two

depositions.

In his preliminary report, Noettl opined that the truck

Oddi was driving

rode up on the guard rail because of the failure of the

left side of the front bumper. . . . Had the bumper not

significantly deformed back and inward the vehicle

would have been deflected by the guard rail.

It is also my opinion that the floor board allowed

intrusion by the guard rail and possibly the concrete

barrier into the occupant compartment in the area

near the brake pedal and where the driver's feet and

legs would be located. This intrusion was a direct

cause of the injuries to Mr. Oddi.

Had the bumper and the floor board been properly

structurally designed the vehicle would not have gone

over the guard rail and the occupant compartment

_________________________________________________________________

13. Ford and Grumman do not challenge his qualifications as an expert.

13

would not have been intruded by the guard rail and

concrete barrier.

App. at 104-105.

After he reviewed the deposition of defense expert Donald

Edelen, Noettl submitted an amended report, dated

December 4, 1997. In it he stated:

It is my opinion that [Ford] should have warned

[Grumman] of the fact that the front bumper on their

chassis is for decorative trim only and will not offer

protection to the body and occupant in a collision. As

a result of the design of the chassis and bumper, the

front wheels of the vehicle become exposed in

foreseeable accident situations. Ford should have

specifically warned that the bumper was extremely

weak due to the fact that it had no backing plate or

brackets for reinforcement and because it had holes in

the bumper placed immediately adjacent to the outside

where the bumper mounted to the chassis.

* * *

Neither Ford nor Grumman conducted any testing that

involved the vehicle impacting with guardrails. Neither

Ford nor Grumman incorporated any design(s) into the

chassis or body of the vehicle that would prevent or

reduce the likelihood of the vehicle going over a

guardrail in the event of an impact with a guardrail.

Due to the vehicle's height, weight, and design the

vehicle as a propensity to ramp up onto the guardrail

in foreseeable collision situations.14 . . . This design

_________________________________________________________________

14. This sentence could be read as advancing a new theory of design

defect -- a "propensity to ramp" theory - because of the height, weight

and design of the truck. That is, it could be taken as a theory separate

and apart from Noettl's defective front bumper andfloor board theories.

However, during his second deposition, Noettl clearly stated that he was

not advancing any such separate theory. He testified:

Q: Alright. "Has a propensity to ramp." When you say that, you are

just telling me that this is a bigger truck. And as a bigger truck,

you

believe that it has more of a propensity to ramp than smaller

vehicles?

14

defect caused or contributed to the cause of the

accident and to Mr. Oddi's injuries.

App. at 100-01.

In response to summary judgment motions, in which

Ford and Grumman noted certain deficiencies in Noettl's

submissions, Noettl prepared an affidavit which Oddi's

counsel attached to Oddi's response to the summary

judgment motions. That affidavit is dated September 23,

1998, and reads, in relevant part:

1. Given the basic design of this vehicle, the following

is a description of alternative designs that in my

opinion, would have (1) prevented the Oddi vehicle

from ramping the guard rail and (2) prevented the

intrusion which occurred of structural components into

the occupant compartment.

A. A reinforced bumper. The bumper on the subject

vehicle had a measured 3.5 X 6.5 inches holes at

critical stress points next to the frame rails to which

the bumper is attached. The holes were designed and

manufactured by the bumper manufacturer. The

bumper should have been reinforced at these points by

eliminating the holes and/or welding inch to inch steel

reinforcement wedges between the frame rails and the

upper and lower edges of the back side of the bumper.

B. Steel brackets should have been welded to the . . .

back side of the upper and lower edges of the back of

the bumper.

_________________________________________________________________

A: That is correct.

Q: That is all there is to it?

A: That is correct.

Q: And is that a defect?

A: No. That is not in and of itself a defect. The defects are the

things

we discussed. [i.e., the bumper and floor boards, discussed in a

prior deposition].

Supp. App. at 144a (emphasis added).

15

C. The bending and tensile properties and or metal

thickness of the bumper should have been increased in

addition to A or B as described above.

D. Various bumper configurations such as tubular or

cylinder designs should have been manufactured and

tested in addition to A, B, and C above. These bumper

configurations are stronger than flat bumpers with

similar metal characteristics.

E. The occupant compartment should be reinforced

by increasing the bending and tensile properties and

metal thickness (by .125 inch increments) in the area

of the floorboard and fire wall and\or by welding or

forming ribbing to the metal in this area. Safety factors

of fifty or hundred percent are common in products.

2. I have observed bracket and wedge bumper

reinforcements on similar vehicles. As to metal

thickness -- the steering components on the subject

vehicle were protected by a measured .35 inch

(approximately) thick steel enclosure while the bumper

on this vehicle was designed to be .208 inch thick-- a

difference of approximately .142 inch.

3. Guard rails of this type are common in road way

design and vehicle encounters of the type that

happened with the Oddi vehicle should be expected by

manufacturers.

4. The design changes I have described were capable

of being incorporated into the design and manufacture

of this truck in 1976 using basic engineering design

and manufacturing techniques.

5. The design changes I have described would not

interfere with the function or intended use of the truck.

6. In my opinion the above design changes would

have greatly increased bumper strength and occupant

compartment protection with very little total

incremental vehicle manufacturing cost.

7. It is my opinion that if the design changes

described above were incorporated into the

manufacturing process of the Oddi vehicle it would not

16

have ramped on to the guard rail and would not have

experiences sudden deceleration from striking the

bridge abutment. This would have prevented the

intrusions into the occupant compartment and the

significant injury which Mr. Oddi sustained.

App. at 123-24.

In one of his depositions, Noettl testified that he based

the opinions contained in his June 16, 1997 preliminary

report in part on a review of accident reports, photographs,

witnesses' statements, Oddi's medical records, and Oddi's

deposition testimony; and in part on his own [Noettl's]

"experience," "academic training," and"research that [he

does] almost on a continuous basis, reviewing technical

literature." App. at 138-139. However, Noettl was unable to

identify any particular literature that he relied upon to form

any of the opinions contained in his preliminary report. Id.

Noettl testified that he did view films of crash tests in

forming his opinions, Id. and he insisted that the

alternative designs he suggested could be found in"any

machine design book." Id. at 48-49. Noettl did list a

number of accepted authorities and textbooks in a

document Oddi's counsel refers to as an "offer of proof." Id.

at 201.

Ford and Grumman point to specific portions of Noettl's

depositions which they claim plainly demonstrate that

Noettl's proffered expert testimony does not meet Daubert

standards. Noettl opined that the front bumper was

defective because it "bent back" when it struck the

guardrail. He explained this was a defect because"it was

designed with a large lever arm on the vehicle, out from the

frame rail. It had holes in it for towing, which, in my

opinion, would greatly weaken the structure, especially with

that large lever arm on it which would allow it to be bent

back." App. at 45. Noettl claimed that the bumper should

have been designed "with either bracketry that would go

from the frame rail out to the center part of that part of the

bumper, or what [he referred to] as a backing wedge." Id. at

47. According to Noettl, the "backing wedge""would be like

a V[ ]." Id.

However, when Noettl was asked to elaborate upon his

belief that the bumper was defectively designed because it

17

bent backward upon striking the guardrail the following

exchange occurred:

Q: Now, have you determined what force was inflicted

on the guardrail at the time of initial impact with the

truck?

A: No, I haven't. No.

Q: Have you determined what force the truck inflicted

on the bridge abutment and the rail on top of the

bridge abutment when it made contact with that?

A: No, the reason for answering both those questions,

you would have a range of variables, also, but

guardrails are designed to absorb energy and deflect

vehicles. You would have to make an awful lot of

assumptions.

Q: Have you determined or measured the strength or

rigidity of the guardrail?

A: No.

Q: You haven't ascertained how much force it could

hold, is that correct?

A: That's correct.

App. at 43-44. Later in the deposition, Noettl testified as

follows:

Q: Do you know how much force it took to bend that

bumper to the point where it's bent?

A: No, I don't.

Q: Do you know how much force that bumper was

capable of sustaining without bending? Have you

determined that?

A: I haven't determined that, right.

Id. at 46-47.

When Noettl was questioned about his proposed designs

for the bumper, and design changes that would have been

necessary to remedy the suggested defect, he offered several

possibilities, but he conceded that he had not attempted to

test or substantiate the modifications he was suggesting.

18

Q: What type of metal should the wedge be

constructed from?

A: It could be the same as the bumper, if you wanted

to, but you just turn it on end. You could have many,

many choices on that.

Q: What if you used a brace? What type of metal

should that brace be constructed from?

A: Again, you could use the same as the bumper.

Again you would have a lot of choices on that. The

bracketry would probably not be as strong as the

wedge. Probably not. Test it and maybe you would

achieve a strength that would far exceed anything you

could expect.

Q: What would be the tensile strength or the gauge of

the metal have to be on both of those options?

A: The way you go through is look up in books and

you say, "Here. We got some metal here and let's try

this." Certain gauge, certain strength, something that

is readily available. It's not a big thing, is what I'm

trying to say. You certainly would not cut holes in it

right at one of the most critical points of where you

major bending force is going to occur, which is at your

railing.

Q: So this would be something relatively simple to

look up in a book, and you could determine from the

computations in some engineering book what you

should be using. What would the name of the book be?

A: Any machine design book.

Q: Is that a particular book or is that a type of a

book, machine design book?

A: That's a type of book.

Q: Could you give me an authority?

A: There are machine design books that give you all

types of metal gauges. If you go through the design

process for any of these things on a bumper, frame

rails, exactly what they do -- they don't sit down. They

don't do finite element analysis. They look up in books

19

what metal thickness, what's our yield strength, what's

our tensile properties of this metal, bang, bang, bang.

We're going to use this.

Q: Have you done that?

A: No. I haven't done that, no.

Q: So you don't know what the thickness would have

to be, what the metal gauge, what the tensile strength

--

A: Right.

Q: -- what type of material you would need to use; is

that correct?

A: I told you I would use -- probably start with the

same material that you have in the bumper. Take a

piece of metal, turn it on its edge, put it in back of it,

weld it on there for a test, see what strength you do

gain out of this as far as impact, as far as bending

moments and as far as shearing. You sure hope it

won't shear off. You would do that. You would say,"I

want it a little bit stronger." The easiest way, by far, is

to thicken the metal. That's all you have to do. Get a

lower gauge metal and put that on there and try it

again.

Q: How thick would the metal have to have been to

have not deformed in this impact?

A: I would say, in my opinion, half inch to an inch

and a half range would be more than adequate to

withstand the force on edge. That's the thickness, not

the width.

Q: What would the width be?

A: I don't know. Three inches or so, four inches.

B. Leon Kazarian.

Kazarian, the biomechanical engineering consultant, was

retained to explain how Oddi received his injuries. Kazarian

authored a preliminary report, dated June 18, 1997, in

which he opined: "On impact, the end of the bridge

20

pierced and penetrated the driver's occupant compartment

impaling, cutting and crushing Mr. Oddi's extremities." The

report noted that Oddi "was found outside the vehicle on

the grassy slope next to the bridge." App. at 113. Though

Oddi had been thrown from the truck, Kazarian concluded

that Oddi had "sustained his primary injuries at the time

he was in the driver's seated position," and that his injuries

occurred "as a result of the bridge piercing, penetrating and

crushing his extremities while he was in the driver's

compartment." Id.

The following exchange occurred during Kazarian's

deposition:

Q: Have you considered what would have happened to

Mr. Oddi in the event that there was no compromise to

the floor of the vehicle and he still had the same

accident? Are you able to tell us what would have

happened to him physically?

A: No, not as I sit here.

Q: It could have been worse, it could have been

better?

A: I don't know.

******************************

Q: And you hold no opinion on whether or not the

vehicle mounted the guardrail, correct?

A: That's correct.

Q: Given that, have you considered what injuries, if

any, Mr. Oddi would have sustained if the vehicle

didn't mount the guardrail or ramp the guardrail?

A: No.

Q: So I take it that since you haven't considered that

aspect, that you hold no opinions as to what injuries,

if any, Mr. Oddi would have sustained had the vehicle

not mounted or ramped the guard rail.

A: Yes. As I sit here, I haven't thought about that.

Grumman's Br. at 32. Therefore, although Kazarian

testified about how Oddi received his injuries, he was

21

unable to offer an opinion on the key aspect of Oddi's

crashworthiness claim, i.e., whether Oddi's injuries were

exacerbated by the design of the bread truck.

V. DISCUSSION.

Oddi argues that the district court erred in denying his

motion for an in limine hearing on the Daubert challenge,

and in granting summary judgment. We will address each

argument separately.

A. Necessity for an in limine Hearing under Daubert.

Oddi bases his contention that a hearing was required

upon Kumho Tire (decided just one week before the district

court granted summary judgment here), and our holding in

Padillas.15 We decided Padillas one month after the district

court granted summary judgment.

Oddi submits that his case had been pending for four

years before the Supreme Court decided Kumho Tire, and

that Kumho Tire was not decided until after each of the

following occurred in his case: (1) he filed his experts'

reports; (2) his experts had been deposed; (3) defendants

had filed their summary judgment motions; and (4) he had

filed his papers in opposition to the summary judgment

motions. Oddi's Br. at 15. Moreover, he claims that from

the time he started his lawsuit until Kumho Tire was

decided, the law did not assess nonscientific expert

testimony under Daubert. Id. Nonetheless, the district court

expressly subjected Noettl's testimony to Daubert scrutiny

under Kumho Tire. See 3.31.99 Dist. Ct. Op. at 3, 7.

Thus, though not clearly articulated, Oddi is arguing that

Kumho Tire worked a substantial change in the law and

that the district court blind-sided him by subjecting his

experts' testimony to a Daubert analysis. He contends that

the district court's failure to hold an evidentiary hearing

"precluded [him] from ever having the opportunity to

present [his] expert testimony in accordance with the

Kumho decision." Oddi's Br. at 15.

_________________________________________________________________

15. Although he now makes this argument to us, he never asked the

district court to conduct such a hearing.

22

Oddi's claim that the scope of Daubert was unsettled

until Kumho Tire is not without force. See In re Unisys

Savings Plan Litigation, 173 F.3d 145, 162 n.2 (3d Cir.

1999) (Becker, J., dissenting). Prior to Kumho Tire, there

was substantial uncertainty about whether Daubert applied

to nonscientific expert testimony. Contrast Surace v.

Caterpillar, Inc., 111 F.3d 1039, 1055-56 (3d Cir. 1997);

United States v. Valasquez, 64 F.3d 844, 847-50 (3d Cir.

1995); and Habecker III, at 289-90 (3d Cir. 1994), with

Lauria v. National Railroad Passenger Corp., 145 F.3d 593,

599 n.7 (3d Cir. 1998).16 In Lauria we not only concluded

that Daubert scrutiny did not apply to the proffered

testimony of an engineer, but also that a nonscientific

expert's testimony was admissible under Rule 702 based

upon the expert's experience and knowledge. Id. at 599.

Nevertheless, we do not think that Oddi's reliance on

Kumho Tire establishes that the district court erred in

granting summary judgment here without an in limine

hearing. Oddi was surely alerted to this problem when Ford

raised a Daubert challenge in its summary judgment

motion. In his brief in opposition to the defendants'

summary judgment motions, Oddi specifically discussed

Daubert, and argued that his experts' testimony satisfied

Daubert. App. at 70-94. Despite the uncertain scope of

Daubert, he never argued that Daubert did not apply to

nonscientific expert testimony. Moreover, Oddi now reads

far too much into our decision in Padillas.

It is not clear whether Oddi is arguing that Padillas

always requires a hearing or that the procedural posture of

his case is so like Padillas that the district court abused its

discretion by not holding an in limine hearing. In Padillas,

we focused upon the process by which the district court

there determined that proffered expert testimony was

inadmissible under Daubert. 186 F.3d at 417 ("We do not

reach the question whether the district court abused its

discretion in holding the [expert's] Report inadmissible

under Rule 702. Our concern is with the process by which

the court arrived at its ruling.").

_________________________________________________________________

16. In Lauria we specifically noted that the Circuit Courts of Appeals

were split over whether Daubert applied to nonscientific expert

testimony. Id. at 599 n.7.

23

Padillas had been injured while hosing down a chicken

cutting machine manufactured by Stork-Gamco. The

cutting machine had an exposed cutting blade. He sued

Stork-Gamco alleging strict products liability, negligence,

breach of warranty and failure to warn. To establish

liability, Padillas retained an engineering expert (Lambert)

who opined in a written report that Stork-Gamco's failure

to provide a guard that would prevent the snagging of the

hose during wash-down and its failure to protect workers

from the cutting blade resulted in a defective machine that

caused his injury. Id. at 416.

Stork-Gamco filed a motion for summary judgment,

arguing that Lambert's report did not meet the Daubert

standards for admissibility. The district court agreed,

excluded the report, and then granted summary judgment

to Stork-Gamco. In reversing and remanding for an in

limine hearing on Lambert's proffered testimony we

criticized the process used by the district court. We noted

at the outset that we have "long stressed the importance of

in limine hearings under Rule 104(a) in making the

reliability determination under Rule 702 and Daubert." Id.

at 417 (internal quotations and citations omitted). We also

reiterated the importance of an in limine hearing in ruling

upon Daubert challenges even in the absence of a request

for such a hearing. We stated that the district court has an

"independent responsibility for the proper management of

complex litigation" and emphasized that the plaintiff

"need[s] an opportunity to be heard" on the critical issues

of scientific reliability and validity. Id. The opportunity to be

heard is important because it allows a plaintiff"a chance to

have his or her expert demonstrate and explain the`good

grounds' upon which the expert evidence rests." Id. at 418.

However, our analysis in Padillas cannot be divorced

from the record that was before us. In commenting upon

the district court's Daubert analysis of Lambert's report, we

noted that it "does not establish that Lambert may not have

`good grounds' for his opinions, but rather, that they are

insufficiently explained and the reasons and foundations

for them inadequately and perhaps confusingly explicated."

Id. Lambert's report was quite conclusory and did not

adequately explain the basis for his opinion, or the

24

methodology employed in reaching his conclusions. It was

in that context that we held that if the district court "was

concerned with the factual dimensions of [Lambert's]

evidence . . . it should have had an in limine hearing to

assess the admissibility of the report giving the plaintiff an

opportunity to respond to the court's concerns." Id. (citation

and internal quotations omitted). We stated, "when the

ruling on admissibility turns on factual issues, . .., at least

in the summary judgment context, failure to hold[an in

limine] hearing may be an abuse of discretion." Id.

(emphasis added).

Oddi attempts to equate the district court's rejection of

Noettl's testimony here with the rejection of Lambert's

testimony in Padillas. He submits that the district court

found the basis of Noettl's conclusions "confusing." Oddi's

Br. at 13. Consequently, he argues, the district court

should have conducted an evidentiary hearing as we

ordered in Padillas. Id.

Initially, we suspect that Oddi is being disingenuous in

stating that the district court found that the basis of

Noettl's conclusions was "confusing." The district court's

reference to "confusion" had nothing to do with its decision

to exclude Noettl's testimony. Rather, the "confusion"

stemmed from a statement Noettl made in his December 4,

1997 amended report. He there referred to an alleged defect

based upon the height, weight and design of the truck. He

said those factors created a propensity to ramp. In his

motion for reconsideration, Oddi claimed that he was

entitled to reconsideration because the district court

"disregarded his defect claim regarding the vehicle's

`propensity to ramp' " because of the size of the vehicle.

9/2/99 Dist. Ct. Op. at 9-10. The district court's

"confusion" was nothing more than a reference to the fact

that neither the court nor the defendants could have

interpreted Noettl's testimony about the truck's"propensity

to ramp" as advancing an additional design defect apart

from the defective bumper and flooring. To alleviate its

"confusion," the district court reviewed Noettl's deposition

testimony on that issue and quite correctly concluded that

Noettl was not raising an alternative or additional design

defect theory. 9/2/99 Op. at 13. See n.15, supra. Thus, the

25

district court did not disregard any of Noettl's theories and

was not confused about the basis of Noettl's opinions.

More to the point however, Oddi's attempt to equate his

circumstances with those in Padillas ignores the record

here. As noted above, the record in Padillas was scant, and

the district court therefore had no way of determining how

Lambert had arrived at his conclusions about the chicken

cutting machine. Accordingly, we held that the court had

an independent obligation to reach a decision upon a

record that had been adequately developed to allow for a

meaningful evidentiary determination. We based that

holding upon two separate considerations. "First,. . . the

court has an independent responsibility for the proper

management of complex litigation. Second, because plaintiff

could not have known in advance the direction the district

court's opinion might take and thus needed an opportunity

to be heard on the critical issues before having his[/her]

case dismissed." Id. at 417 (citations omitted).

Here, however, the evidentiary record pertaining to Oddi's

expert was far from scant. As noted, it consisted of: (1) a

preliminary report; (2) an amended report, prepared after

Noettl reviewed the deposition testimony of a defense

expert; (3) an affidavit specifically prepared to meet the

defendants' Daubert challenge contained in their summary

judgment motions; and (4) Noettl's two depositions. The

district court therefore apparently saw no need to conduct

a hearing before ruling on the Daubert challenges. This is

consistent with Padillas and perfectly appropriate under

Kumho Tire.

In Kumho Tire the expert's proffered testimony was taken

from deposition testimony. 526 U. S. at 142 ("The plaintiffs

rested their case in significant part upon deposition

testimony provided by an expert in tire failure analysis,

. . . , who intended to testify in support of their

conclusion."). In the district court, the defendants

requested an in limine hearing to challenge the plaintiff 's

expert's proffered testimony. However, the district court

refused that request, finding that two depositions

submitted to it (one from the case before it and one from an

unrelated case involving similar issues) were sufficient to

allow an inquiry under Daubert. See Carmichael v. Sanyang

26

Tires, Inc., 923 F. Supp. 1514, 1518 (S. C. Ala. 1996). In

approving the process the district court used to conduct its

Daubert inquiry the Court wrote:

The trial court must have the same kind of latitude in

deciding how to test an expert's reliability, and to

decide whether or when special briefing or other

proceedings are needed to investigate reliability, as it

enjoys when it decides whether or not that expert's

relevant testimony is reliable. Our opinion in Joiner

makes clear that a court of appeals is to apply an

abuse-of-discretion standard when it reviews a trial

court's decision to admit or exclude expert testimony.

That standard applies as much to the trial court's

decision about how to determine reliability as to its

ultimate conclusions.

526 U. S. at 152 (citations and internal quotations

omitted)(emphasis added).

The same situation obtains here. Although Oddi

strenuously claims that he was entitled to an in limine

hearing, he does not even begin to suggest how such a

hearing would have advanced his position, and we can not

begin to imagine that it would have. He does not claim that

he has any new or additional information to present, and

he does not claim that the factual record before the district

court was somehow incomplete insofar as Noettl's

testimony is concerned.17 Rather, he merely insists that he

is entitled to a hearing under Padillas. However, "Padillas

certainly does not establish that a District Court must

provide a plaintiff with an open-ended and never-ending

opportunity to meet a Daubert challenge until plaintiff `gets

it right.' " In re TMI Litigation, 199 F.3d at 159. Yet, that is

where Oddi's argument would take us.

Moreover, Oddi's reliance upon a denial of an in limine

hearing also reflects a basic misperception about the nature

of the hearing the court might have conducted even if it

had afforded Oddi such a hearing. In Downing, we

_________________________________________________________________

17. We do not suggest that the district court would have abused its

discretion in denying an in limine hearing on this record even if Oddi had

made these claims.

27

reiterated that trial courts retain significant discretion to

determine in each instance "the procedure [it] should follow

in making preliminary determinations regarding

admissibility of evidence." 753 F.2d at 1241. We said that

"we will not prescribe any mandatory procedures that

district courts must follow in every case involving proffers

of scientific evidence," and then noted "[a] few general

observations . . ." as to how the preliminary evidentiary

issues might be decided under Rule 702. We stated:

It would appear that the most efficient procedure that

the district court can use in making the reliability

determination is an in limine hearing. Such a hearing

need not unduly burden the trial courts; in many

cases, it will be only a brief foundational hearing either

before trial or at trial but out of the hearing of the jury.

In the course of the in limine proceeding, the trial court

may consider, inter alia, offers of proof, affidavits,

stipulations, or learned treatises, in addition to

testimonial or other documentary evidence (and, of

course, legal argument).

Id. Here, the district court already had before it the

depositions and affidavits of the plaintiff 's experts. Nothing

more was required.

This conclusion is not inconsistent with our recent

holding in Elcock v. Kmart Corp., __ F.3d __, 2000 WL

1486489 (3d Cir. Oct. 10, 2000). There, we reversed an

award of damages and remanded for an in limine hearing as

to the admissibility of the testimony of plaintiff 's economic

loss expert. The witness in question, Dr. Chester

Copemann, testified as an expert in vocational

rehabilitation, and his testimony "substantially informed

the large award for loss of future earnings and earning

capacity." Id. at * 1. We reversed based upon our

conclusion that "there should have been a Daubert hearing

prior to the receipt of Copemann's testimony. . . ." Id. The

defendant there had "repeatedly requested that the District

Court conduct a Daubert hearing regarding Copemann's

methods as a vocational rehabilitationist." Id. at *7. The

case was litigated before the Supreme Court's holding in

Kumho Tire, and the district court did not view the

admissibility of the testimony of plaintiff 's nonscientific

28

expert as a Daubert issue. Id. However, Elcock, like Padillas,

is a situation where the "gatekeeper" could not determine

what methodology the expert used, and the reliability of the

expert's conclusion could therefore not be established. In

Elcock, we stated:

[A] review of Copemann's vocational rehabilitation

testimony demonstrates the significant reliability

questions raised by his methodology and compels the

conclusion that a Daubert hearing would have

permitted a fuller assessment of Copemann's analytical

processes and thus was a necessary predicate for a

proper determination as to the reliability of

Copemann's methods.

Id. at *8. In other words, a hearing was necessary to

determine how the expert reached his opinion. Id . at *9 ("An

expert's opinion is reliable if it is based on the methods and

procedures of science rather than on subjective belief or

unsupported speculation; the expert must have good

grounds for his or her belief.")(citations and internal

quotations omitted). However, "because Copemann never

explained his method in rigorous detail, it [was] nearly

impossible for [the defendant's] experts to repeat

Copemann's apparently subjective methods. . . " Id. at *11.18

However, here, Noettl did explain how he arrived at his

opinion, and he did it in as much detail as possible given

the nature of his "inquiry."

Accordingly, we reject Oddi's assertion that he was

entitled to an in limine hearing before the court could reject

his expert's testimony. Our conclusion does not, however,

end our inquiry. We must still determine whether the

district court abused its discretion in ruling that Oddi's

proffered expert testimony was inadmissible under Rule

702 and Daubert.19

_________________________________________________________________

18. In Elcock, we also concluded that the trial court had erred in

allowing

the plaintiff 's economist to testify at trial because his testimony was

not

"accompanied by a sufficient factual foundation[to be] submitted to the

jury." 2000 WL 1486489 at *17.

19. Two small matters also remain that pertain to this portion of Oddi's

argument. First, Oddi argues that the district court failed to rule on his

29

B. The District Court's Exercise of Discretion.

Because "the evidentiary requirement of reliability is

lower than the merits standard of correctness," the

standard for determining scientific reliability"is not that

high." Paoli II, at 744-45. The test is not "[w]hether the . . .

expert might have done a better job." Kannankeril, 128 F.3d

at 809. Nonetheless, even though the Federal Rules of

Evidence "embody a strong and undeniable preference for

admitting any evidence which has the potential for assisting

_________________________________________________________________

motion to strike Grumman's reply brief filed after Oddi filed his response

to the original summary judgment motions. As noted earlier, Grumman's

initial summary judgment motion did not raise a Daubert challenge to

Oddi's experts' testimony. It was only after Oddi responded to Ford's and

Grumman's summary judgment motions that Grumman asserted a

Daubert challenge via a reply brief. Oddi thenfiled a motion to strike,

presumably asserting that the reply brief was filed without leave of

court.

However, the district court did not rule on Oddi's motion to strike, and

Oddi claims that he was prejudiced by the district court's failure to

strike Grumman's reply brief. The prejudice lies in the fact that,

according to Oddi, Ford's Daubert challenge was only to Noettl's bumper

testimony and not the flooring testimony, while Grumman's was to both

the bumper and flooring. Thus, Oddi argues that he was not able to

respond the newly asserted challenged to Noettl'sflooring testimony.

However, Oddi would be hard pressed to demonstrate prejudice because

Ford's summary judgment motion mounted a Daubert challenge to

Noettl's testimony with regard to the bumper claim as well as the flooring

claim. Thus, even if it is assumed for argument's sake that the district

court improperly failed to strike Grumman's reply brief, Oddi suffered no

harm because Noettl's testimony as to both the bumper and the floor

was attacked at the outset by Ford. Furthermore, Oddi does not cite any

authority for his contention that it was improper for Grumman to file a

reply brief or any authority supporting his contention that Grumman's

reply brief should have been stricken. Consequently, Oddi's prejudice

argument is without merit.

Second, Oddi argues that the district court did not comply with its

local court rule 7.1F which requires oral argument for dispositive

motions "unless expressly precluded by the court." However, this

argument is also without merit. As the district court expressly noted, it

is the custom and practice of the United States District Court for the

Western District of Pennsylvania to preclude oral argument on

dispositive motions. The ability of the district courts to preclude

argument is expressly given to the court by the local rule.

30

the trier of fact," Kannankeril, at 806, we do not believe that

the district court abused its discretion in rejecting Oddi's

expert testimony here.

As we noted earlier, the factors to be considered in a

Daubert admissibility inquiry 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, at 742 n. 8. While Noettl clearly meets Daubert's

qualifications requirement, his expert opinion does not

satisfy any of the other considerations that determine

admissibility.

Noettl posited two hypotheses. His first hypothesis was

that the front bumper's design should have included either

bracketry or a brace system that would have increased the

bumper's rigidity, prevented the truck from ramping, and

deflected the vehicle back onto the roadway after impact

with the guard rail. His second hypothesis was that thicker

and/or ribbed metal on the flooring of the cab would have

retained the integrity of the cab. However, Noettl quite

candidly testified that he never tested either hypothesis.

Consequently, he has not satisfied the first of the Daubert

factors. 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." Daubert, at 593 (emphasis added).

Although Daubert does not require a paradigm of

scientific inquiry as a condition precedent to admitting

expert testimony, it does require more than the haphazard,

intuitive inquiry that Noettl engaged in. Given Noettl's

responses, Oddi could not establish the existence of Noettl's

31

methodology and research let alone the adequacy of it.20

This is illustrated by Noettl's attempt to explain how he

arrived at his conclusion. Noettl testified that he had

"studied" bread trucks but was not able to state if they

were the same kind of truck that Oddi was driving or even

if they were produced by the same manufacturer.

Q: What type of vehicles [did you examine]?

A: Bread trucks.

Q: Whose bread trucks? Who made them?

A: They were in front of a grocery store and I walked

up and looked at them. I didn't record anything off of

them. I seen them [i. e., bracketry or wedge supports]

on them [i. e., front bumpers].

****************************

Q: You didn't make a note of what the bread truck

was so you could go back and say, "Here's the design

I'm proposing and somebody is already using this."

A: I said that in my mind, and I had groceries and I

didn't have a camera and nothing else.

Q: You don't remember the name of the bread

company?

A: No, I don't. It might come to me. I can't tell you,

no.

******************************

Q: You don't know whether or not those trucks would

have sustained a bending of the bumper the same as

this truck because we don't know what the forces are,

right?

A: I would say that they have a better chance, but I

can't tell you more than that, no. That's correct.

******************************

_________________________________________________________________

20. Methodology is defined as "body of methods, rules, and postulates

employed by a discipline: a particular procedure of set of procedures."

WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 747 (1990).

32

Q: But, what you've seen, you don't know whether or

not that would have changed the scenario in this

accident one way or the other?

A: I haven't evaluated that.

App. at 53.

Moreover, not only did Noettl fail to test either

hypothesis, he never even considered the design of the

guardrail or the possibility that the damage to Oddi's truck

was a factor of the design of the guardrail, not the design

of the truck.

Q: What if the guardrail was deformed and bent back

by the force of the impact so it was bent to the point

where it was lower than the bumper? Could a ride-up

occur then?

A: It if was bent back further than the bumper's

height.

Q: If it was bent back and, therefore, it was lower

than the height of the bumper, could it ride up?

A: It's possible. I haven't thought of it, and how long.

I would have to look at that. If you, your tire is exposed

to ramping --

Q: If you have the bumper and the guardrail here and

the guardrail bends down to a point lower than the

bumper, the tire could ride up on it, isn't that correct?

A: That is a possibility, yes.

App. at 46.

Noettl also conceded that strengthening the bumper as

he proposed could result in even greater injury because the

increased rigidity could transmit more force to the driver of

the truck than the defendants' design.

Q: To get back to my question, would the energy-- if

you had a rigid bumper, on impact, the energy of the

impact and the force of the impact would be

transferred to the occupants, right?

A: Some of it would, yes.

33

Q: More of it would than if you had a bumper that

had give to it?

A: Right.

App. at 40-14. Noettl did not offer any testimony as to the

point on the continuum between absolute rigidity and the

rigidity of defendants' design that would achieve greater

protection than the bumper on Oddi's truck yet afford a

practical alternative.

Noettl's explanation of the purported defect in thefloor of

the truck was undermined by the same laws of physics that

undermined his testimony that the bumper design was

defective.

Q: What was wrong with [the floor]?

A: It wasn't strong enough to prevent intrusion in this

type of an accident into the occupant compartment,

exposing the driver to the dangers of that intrusion.

Q: What should have been done?

A: The metal could have been made thicker. It could

have been ribbed.

3/31/99 Op. at 12-3. However's Noettl's own logic clearly

suggests that any such alteration may well have been less

able to absorb impact itself, and therefore it may have

simply transferred even more force to the occupant than

the defendants' design did. Although it may well be that

there is an ideal thickness that would have been able to

absorb far greater force than the defendants' design yet still

protect the truck's occupant, Noettl was not able to identify

that point. He was asked "How thick should it have been?"

He responded: "Well, the way I would do that is to thicken

the metal and rib it and then do a test to see, if under

these types of foreseeable accidents, it would really retain

the integrity of the occupant compartment." 3/31/99 Op. at

12-13. However, he never did that. Id.

Not only did Noettl not test his hypotheses, he did not

even attempt to calculate the force that was inflicted on the

truck by the guardrail at impact; he did not calculate the

force of the bridge abutment on the truck; and he did not

measure the strength of the guardrail or determine how

34

much force the guardrail could sustain. He did not know

how much was required to bend the bumper or penetrate

the floor, or how much force the bumper or floor could

withstand. His hypothesis about adding a "wedge" or

bracket to bumper was likewise without support as he did

not determine the tensile strength or gauge of whatever

metal should be incorporated into his alternative design.

Accordingly, there was no way of knowing if his suggested

alternative would better protect the cab's occupant, or if the

suggested modifications were practical.

Essentially, Noettl's expert opinion that the front bumper

would have sustained the impact with the guard rail and

not ramped had it been strengthened with either bracketry

or wedge supports and that the flooring in the occupant

compartment should have been thicker or ribbed is based

on nothing more than his training and years of experience

as an engineer. Although there may be some circumstances

where one's training and experience will provide an

adequate foundation to admit an opinion and furnish the

necessary reliability to allow a jury to consider it, this is not

such a case. See e.g., Lauria, at 599 (former Conrail

foreman's many years of experience with railroad track

equipment, maintenance and safety equipment, qualified

him as an expert to testify about Amtrak's responsibility to

inspect and maintain railroad track in a safe condition).

Noettl's ipse dixit does not withstand Daubert's scrutiny. An

"expert's opinion must be based on the methods and

procedures of science rather than on subjective belief or

unsupported speculation." Paoli II, at 742 (citations and

internal quotations omitted).

Since Noettl conducted no tests and failed to attempt to

calculate any of the forces on Oddi or the truck during this

accident, he used little, if any, methodology beyond his own

intuition. There is nothing here to submit to peer review,

and it is impossible to ascertain any rate of error for

Noettl's assumptions about the forces that caused Oddi's

horrific injuries. Similarly, no standards control his

analysis, and no "gatekeeper" can assess the relationship of

Noettl's method to other methods known to be reliable and

the non-judicial uses to which it has been put. Clearly, the

district court did not abuse its discretion in excluding

Noettle's proffered expert opinion testimony.

35

We also note an obvious gap in Oddi's argument. As

recited earlier, Oddi retained two experts, Noettl and

Kazarian. The district court also found that Kazarian's

expert opinion testimony did not satisfy Daubert . 3/31/99

Dist. Ct. Op. at 15-16. Kazarian's expert opinion went to

the "enhanced injuries" element of the crashworthiness

claims. Unless Oddi can establish that the defendants'

design and/or manufacture enhanced injuries he would not

have otherwise sustained, or caused him to sustain injuries

that he would not have sustained otherwise, there can be

no recovery under a theory of crashworthiness.

Carrasquilla, 963 F. Supp. at 458. Consequently, even

assuming arguendo that Oddi convinced us that Noettl's

testimony was improperly excluded, his failure to address

the admissibility of Kazarian's testimony means that Oddi

has no admissible evidence to demonstrate the "enhanced

injuries" elements of a crashworthiness claim. 21

C. The District Court Properly Granted Summary

Judgment on the Negligent Failure to Test Claim.

Finally, Oddi argues that the district court erred by

granting summary judgment to Ford and Grumman on his

negligent failure to test claim. As noted, Oddi claims that a

manufacturer has an affirmative duty to test its product to

see if it is defective. He then contends that "it is within the

comprehension of lay jurors to understand that if the

Defendants had tested this truck, they would have been

aware that, in an accident, its design would defeat the

purpose of a guardrail." Oddi's Br. at 27. Accordingly, Oddi

argues that even if his expert testimony was properly

excluded, his negligence claim still survives because he

does not need expert testimony to establish that claim.

As a general principle, "[e]xpert evidence is not necessary

. . . if all the primary facts can be accurately and intelligibly

_________________________________________________________________

21. Moreover, Kazarian's testimony would not have been as helpful as

Oddi believes even if it had been admitted. Kazarian conceded that he

had no opinion on what injuries Oddi would have suffered had there

been no compromise to the floor of the occupant compartment and had

no opinion on what injuries Oddi would have sustained if the truck had

not ramped the guard rail.

36

described to the jury, and if they, as [persons] of common

understanding, are as capable of comprehending the

primary facts and of drawing correct conclusions from them

as are witnesses possessed of special or peculiar training of

the subject under investigation." Padillas , at 415-16

(citation omitted); see also Cipriani v. Sun Pipe Line Co.,

574 A.2d 706, 710 (Pa. Super. 1990)("However, expert

testimony is not required when the matter under

consideration is simple and lack of ordinary care is obvious

and within the range of comprehension of the average

juror.")(citations omitted). Although expert evidence is

generally required in a products liability case where a

defect is alleged, we have never foreclosed the possibility

that a defective condition may be established through non-

expert evidence. In Padillas we opined that since the case

was at the summary judgment stage, it was "premature to

rule out that testimony and pictures may enable the jury to

clearly see the construction of the machine and the manner

of its use, rendering expert testimony unnecessary."

Padillas, at 416. Consequently, we held that it was entirely

possible that Padillas' non-expert testimony may be

"sufficient to submit his claim of defect to the jury." Id.

The truck Oddi was driving is not at all like the chicken

cutter with exposed blades in Padillas. A whirling cutting

blade without a proper guard is obviously dangerous. It

could reasonably be regarded by a lay juror as a design

defect. In addition, in Padillas, plaintiff offered nonexpert

testimony including, but not limited to, reports from

defendant's own employees that referred to "Safety

Problems," and a report from the defendant's engineering

manager "addressing problems with the machine . ..

including `safety concerns [in that the blades were] not well

grounded.' " 186 F.3d at 415.

We do not believe that a juror could look at the front

bumper and the flooring of the cab of the truck Oddi was

driving and reasonably conclude, not only that its design

was defective, but also that testing would have disclosed

the defect and that it could have been remedied. Such

conclusions are within the peculiar competence of experts.

Inasmuch as Oddi's "defect expert" does not survive

Daubert scrutiny, the district court properly granted

37

summary judgment to Ford and Grumman on Oddi's

negligent failure to test claim.22

VI. CONCLUSION.

We are not unsympathetic to Oddi. He suffered horrific

and catastrophic injuries while driving the truck that had

been designed and/or manufactured by the defendants.

That does not, of course, establish that either defendant is

necessarily liable for any of those injuries or that Oddi's

proffered proof was sufficient to prove liability on their part.

Nor does our holding suggest that every plaintiff must

engage in such sophisticated and refined testing (including

crash-testing) as to preclude a successful suit for damages

for all but the wealthiest of plaintiffs or a group of plaintiffs

sufficiently large to allow the economies and practicalities

of class certification. The inquiry required under Daubert

ought not to become an impenetrable barrier for plaintiffs

with limited resources or restricted circumstances. As noted

above, the Supreme Court reminds us that the "inquiry

envisioned by Rule 702 is . . . a flexible one." Daubert, 509

U.S. at 595. It does not require the most elaborate or

sophisticated tests or studies that can be imagined by

opposing counsel. Nevertheless, here, the district court's

inquiry established that Oddi's proffered expert testimony

was not admissible under Fed. R. Evid. 702, and we

conclude that the district court did not abuse its discretion

in rejecting that evidence. Accordingly, we will affirm the

district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

22. Oddi claims that neither Ford nor Grumman moved for summary

judgment on his negligent failure to test claim. Oddi's Br. at 27. That is

incorrect. Ford's and Grumman's summary judgment motions were

directed to all of Oddi's claims, including his negligence claims.

38