The opinion of the court was delivered by: Gregory W. Carman, United States District Judge.
MEMORANDUM OPINION AND ORDER
Defendants, Russell Dean Inc., individually and d/b/a as Garlock East
Company and Garlock Equipment Company, Inc. ("Defendants")
filed two motions in limine on October 25, 2002: (1) a Motion to Exclude
Evidence Regarding Occupational Safety and Health Administration ("OSHA")
Standards; and (2) a Motion to Exclude the Testimony of Plaintiffs
Expert, Alfred Harmon. The remaining Defendant in this case, Liquid
Asphalt Systems, Inc., filed a motion concurring with and joining in all
of the factual and legal claims set forth in Defendants' motions and
supporting memoranda of law. Plaintiffs have not filed any motions in
opposition to Defendants' motions. According to the Local Rules of the
United States District Courts for the Southern and Eastern Districts of
New York, Plaintiffs had ten (10) days in which to respond to the motions
in limine. See Local Rule 6.1(b)(2). Because service was accomplished by
mail, under Federal Rules of Civil Procedure, Rule 6(e), Plaintiffs had
an additional three (3) days in which to respond. Pursuant to both
rules, that time expired on November 13, 2002. On November 20, 2002,
Plaintiffs requested an additional two-week extension of time in which to
file. That extension expired on December 4, 2002. For the reasons set
forth below, Defendants' Motions to Exclude are granted.
I. Defendants' Motion to Exclude Evidence of OSHA Standards is Granted.
Defendants filed a motion on October 25, 2002 to exclude the use of
OSHA standards as inadmissible against a manufacturer because such
evidence is irrelevant and unduly prejudicial. Although there is no 2nd
Circuit case directly on point, Defendants support their argument to
exclude by citing Sundbom v. Erik Riebling, Co., No. 89 Civ. 4660, 1990
U.S. Dist. LEXIS 11297 (S.D.N.Y. Aug. 28, 1990). In that case, the court
stated that generally, "courts have been reluctant to permit evidence of
OSHA regulations in actions against manufacturers" for fear "that
manufacturers would be unfairly held to standards that were not intended
to be imposed upon them." Id. at *3. The court refers to this general
rule of inadmissibility of OSHA standards against manufacturers as "the
shield that was intended to protect manufacturers against being measured
unfairly against standards of care that do not explicitly apply to them."
Id. The court in Sundbom was asked to exclude evidence of OSHA standards
to be applied against an employee. Id. at *1. In Sundbom, the
manufacturer was attempting to introduce OSHA evidence against the
plaintiff/employee to show that the product in question met the applicable
OSHA standards. Id. at *3. While upholding the general prohibition
against using OSHA standards against manufacturers, the court in Sundbom
admitted the OSHA evidence against the employee. Id. at *4.
Rule 401 of the Federal Rules of Evidence defines relevant evidence as
that "having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence." FED. R. EVID. 401. As
Defendants argue, this Court finds that the admission of OSHA standards
against the manufacturers in the present case would not assist the jury
because OSHA standards were not intended to impose duties upon
manufacturers and have no application against manufacturers of products.
The Court agrees that allowing such evidence to be introduced would
likely confuse or mislead the jury.
II. Defendants' Motion to Exclude Expert Testimony of Alfred Harmon is
Defendants filed a motion to exclude "any testimony or argument
regarding any opinion of Plaintiffs expert, Alfred Harmon." (Defendants'
Memorandum of Law in Support of Motion in Limine to Exclude Testimony of
Plaintiffs Expert Alfred Harmon ("Defs.' Br.") at 20.) Defendants claim
that the expert testimony of Alfred Harmon does not satisfy the Federal
Rules of Evidence's requirements and does not pass the Daubert 2-prong
relevance/reliability inquiry. Alfred Harmon ("Harmon") proposes to give
expert testimony on the design of the asphalt kettle, the design of the
asphalt tanker truck and platform, and the warnings that should have been
in place on both pieces of equipment. (Report of Alfred Harmon at 2,
Defs.' Ex. B.)
A. Federal Rules of Evidence
Rule 702 of the Federal Rules of Evidence states that "[i]f
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." FED. R. EVID. 702.
Rule 703 of the Federal Rules of Evidence states that "[t]he facts or
data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence." FED. R. EVID. 703.
In order to provide a more useful framework under which to apply Rules
702 and 703 in determining the admissibility of expert witness
testimony, the Supreme Court set forth a two-prong relevance/reliability
test. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993). First, the trial judge must determine whether the expert is
proposing to testify to scientific*fn1 knowledge. Id. at 592. "The
adjective `scientific' implies a grounding in the methods and procedures
of science" and "the word `knowledge' connotes more than subjective
belief or unsupported speculation." Id. at 590. Second, the trial judge
must determine if the testimony "will assist the trier of fact to
understand or determine a fact in issue." Id. at 593.
The evidence must
be "not only relevant, but reliable." Id. at 589.
In Daubert, the Supreme Court listed several factors that should be
considered in determining the ...