United States District Court, D. Massachusetts
ORDER ON DEFENDANT'S MOTION TO EXCLUDE AND FOR
Buyers Products Company (“BPC”) has moved to
exclude the opinions of John Orlowski
(“Orlowski”), the expert retained by plaintiff
Ronald Linhares (“Linhares”), pursuant to
Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm.,
509 U.S. 579 (1993). BPC also seeks summary judgment. Doc.
No. 39. The Court DENIES the motion.
January 2013, Linhares was operating a self-contained
stainless steel hopper spreader (“salt spreader”)
to spread salt on the grounds of Charlton Memorial Hospital.
Doc. No. 45 ¶ 1. At the conclusion of his work, he
climbed on top of the screen covering the salt spreader
mechanism and stamped on accumulated salt clumps with his
boot-shod feet, in an effort to force the salt through the
salt spreader's screen. Id. ¶ 2. Linhares
asserts that his foot fell into an opening in the salt
spreader's screen, causing him to fall and injure
himself. Id. ¶¶ 2, 44, 47, 51. He filed
the instant action in April 2015 against BPC, the salt
spreader's manufacturer, alleging defective design. Doc.
No. 1. Linhares retained Orlowski to assess the salt
spreader's design. Doc. No. 34.
salt spreader sits in the bed of a pickup truck. Doc. No. 45
¶ 4. The hopper of the salt spreader is covered by a
screen intended to prevent large chunks of ice or salt from
entering into the machine. Id. ¶ 5. The salt
spreader's screen contains an opening of approximately 7
1/2 inches by 12 inches which is bisected by a beam, which
itself has an opening to accommodate a hook, strap or other
lifting apparatus used to install or remove the salt spreader
from the pickup truck. Id. ¶ 7-11.
report, Orlowski opined that the salt spreader “was
defective and unreasonably dangerous in that the hopper
screen contained a large open area into which one could
step” and that “[t]he defective and unreasonably
dangerous condition of the [salt spreader] . . . was a
substantial contributing cause of Ronald Linhares [sic]
injuries.” Doc. No. 34-1 at 6. Orlowski further stated
that “it would have been safe and prudent to affix the
hopper screen opening with a hinged cover to enclose the
opening when the unit was not being lifted.”
Id. at 5.
prevail on a motion for summary judgment, the movant must
demonstrate “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). Once the movant
“has properly supported its motion for summary
judgment, the burden shifts to the non-moving party, who
‘may not rest on mere allegations or denials of [its]
pleading, but must set forth specific facts showing there is
a genuine issue for trial.'” Barbour v.
Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)). The Court is “obliged to review the
record in the light most favorable to the nonmoving party,
and to draw all reasonable inferences in the nonmoving
party's favor.” LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 841 (1st Cir. 1993). However,
“conclusory allegations, improbable inferences, and
unsupported speculation” will not suffice.
v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990)). Summary judgment will enter
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Exclusion of Orlowski
argues that Orlowski is not qualified to offer opinions on
the design of the salt spreader, that his opinions are not
based on sufficient facts or data, and that he did not
reliably apply his methodology to the facts. Doc. No. 40. The
Court rejects each of these arguments.
proponent of expert testimony bears the burden of
demonstrating that the evidence satisfies Fed.R.Evid. 702 by
a preponderance of the evidence, as interpreted by
Daubert and its progeny. McGovern v. Brigham
& Women's Hosp., 584 F.Supp.2d 418, 422 (D.
Mass. 2008). An expert's testimony must “rest on
a reliable foundation and [be] relevant to the task at
hand.” Daubert, 509 U.S. at 597. “The
ultimate purpose of the Daubert inquiry is to
determine whether the testimony of the expert would be
helpful to the jury in resolving a fact in issue.”
Hochen v. Bobst Group, Inc., 290 F.3d 446, 452 (1st
Cir. 2002) (quoting Cipollone v. Yale Indus. Prod.,
Inc., 202 F.3d 376, 380 (1st Cir. 2000)).
702 requires Linhares to show that (1) “the testimony
is based upon sufficient facts or data, ” (2)
“the testimony is the product of reliable principles
and methods, ” and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. First, the Court determines if the
expert's data “provides adequate support to mark
the expert's testimony as reliable.” Carlucci
v. CNH America LLC, No. 10-12205-DPW, 2012 WL 4094347,
at * 3 (D. Mass. Sep. 14, 2012). “[N]othing in either
Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the
expert.” General Electric Co. v. Joiner, 522
U.S. 136, 146 (1997). Second, to assess the reliability of
the expert's principles and methods, the Court examines
the reasonableness of the expert's approach and
“the method of analyzing the data thereby
obtained.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 153-54 (1999). The proffered expert must
“impart scientific knowledge rather than