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June 11, 2001


The opinion of the court was delivered by: Guzman, District Judge.


This matter is before the Court on plaintiff Katherine Traharne's objections to Magistrate Judge Thomas Rosemond's Order granting defendant's motion to bar testimony of plaintiffs expert Greg Kaplan ("Kaplan"), and both parties' objections to Magistrate Judge Rosemond's Order granting in part and denying in part defendant's motion to bar testimony of plaintiffs expert Michael Morse ("Morse"). For the reasons set forth below, the Court rejects plaintiffs objections and accepts Judge Rosemond's findings with respect to the testimony of Greg Kaplan, and the Court rejects both parties' objections and accept Judge Rosemond's findings with respect to the testimony of Michael Morse.

I. Defendant's Motion to Bar Testimony of Greg Kaplan

A magistrate judge's ruling on a non-dispositive matter may only be reversed on a finding that the order is clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a). Pretrial motions are considered non-dispositive of litigation and are reviewed by the district court under the more lenient clearly erroneous standard. United States v. Premises Known As 281 Syosset Woodbury Road, 862 F. Supp. 847, 851 (E.D.N.Y. 1994), affd, 71 F.3d 1067 (2d Cir. 1995). "A finding is clearly erroneous when although there is enough evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Plaintiff, as administrator of her deceased brother's estate, filed a products liability action against defendant, a manufacturer of a submersible pump, charging that the pump was negligently designed and that the negligent design caused the death of her brother. The tragic accident took place on June 13, 1995 when plaintiffs brother suffered a fatal electric shock while attempting to use a sump pump to drain rainwater from a swimming pool.

Plaintiff objects to the characterization of Kaplan as an expert and to the characterization of his testimony as an "opinion." Instead, plaintiff suggests that the process used by Kaplan to design the supplemental restraint is factual testimony and Kaplan is an occurrence witness. This Court rejects plaintiffs assertions that Kaplan is an occurrence witness. Kaplan never examined any of the case materials or even the pump's existing strain relief clamp. Kaplan created an alternative design with an additional supplemental restraint system, testified that it would cost only fifteen cents per unit to manufacture this supplemental restraint, and plaintiff intends to use this alternative design as the standard to which defendant's pump should have conformed. Only Kaplan has the ability to testify about the alternative design. The purpose of the alternative design evidence and Kaplan's testimony is to allow the jury to compare the adequacy of defendant's design with Kaplan's and come to the conclusion that Kaplan's design significantly reduces the risk of an electrocution accident with only minimal additional costs. Therefore, Kaplan is being tendered as a design engineering expert witness and a cost-benefit analysis expert and this Court will view him as such.

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides:

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. Fed.R.Evid. 702.

A witness may offer an expert opinion only when he or she draws on specialized "knowledge, skill, experience, training or education." Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir. 1999), cert. denied, 529 U.S. 1067, 120 S.Ct. 1673, 146 L.Ed.2d 482 (2000). To determine if a witness qualifies as an expert a court should compare the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness' testimony. Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990).

In addition to being a qualified expert, the subject of the witness' testimony must be scientific knowledge. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert further suggests that proposed expert testimony must be derived by the scientific method and must assist the trier of fact in understanding or determining a fact in issue in the case. Id. at 590-91, 113 S.Ct. 2786. Therefore, when faced with the proffer of expert testimony a court must undertake a two-prong analysis. First, the court must consider whether the proffered testimony has been subjected to the scientific method, and second whether the testimony will assist the trier of fact in understanding evidence or determining a fact in issue. Deimber v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th Cir. 1995).

This Court agrees with Magistrate Judge Rosemond's finding that Kaplan was not qualified as an expert and his testimony was not derived by the scientific method and would not assist the trier of fact in determining a fact in issue in this case.

Kaplan does not have any engineering design or physics degrees and has had no training in mechanical or electrical engineering. Kaplan, in fact, is not even a college graduate. He completed two years of general studies at the University of Illinois. Kaplan has not published or lectured on any subject involving sump pump design or safety. Kaplan also has no experience or familiarity with the sump pump manufacturing industry. He has never before designed a sump pump or a sump pump strain relief system.

Even more troubling than Kaplan's lack of qualifications are the methods he used to reach his conclusions. Kaplan did not evaluate defendant's sump pump to determine what caused the pump's strain relief mechanism to fail. Kaplan even admitted that "he was retained to make a clamp. He was not brought into the case to evaluate . . . the existing unit." (J. Rosemond's Order at 6.) Therefore, Kaplan's analysis assumed that the existing strain relief mechanism was defective. However, the precise issue in this case was whether the existing strain relief clamp was defective and if Kaplan's testimony is based on the assumption that it was, then he will obviously not aid the jury in determining the issue involved in this case.

After Kaplan designed his strain relief clamp, he did not validate it through accepted scientific testing methods and procedures. Magistrate Judge Rosemond made the following findings regarding Kaplan's "test":

Mr. Kaplan tested the design by dropping the sump pump ten or more times "from a height greater than two feet . . ." In other words, he held the sump pump by the power cord and let three feet of cord slip through his hand as the unit dropped. This "test" revealed no movement of his designed clamp. In other words, Mr. Kaplan's design pulled all external forces away from the watertight seal.

(Id. at 7.) Kaplan's study was not based on commonly accepted scientific testing procedures and analysis. His "test" and conclusions, according to this Court, are too simple and unsubstantiated to be considered reliable. He also did not conduct similar tests on defendant's sump pump.

Another component of Kaplan's testimony was his analysis that an alternative strain relief mechanism could be installed with minimal costs to the defendant. Again this testimony was out of the realm of Kaplan's expertise. Kaplan is the President and Owner of K&C Machining, Inc., a precision machining company. He has no specialized training, education, or experience that would qualify him as a cost analysis expert. Magistrate Judge Rosemond held that "holding the status of Chief Executive Officer of a successful business enterprise does not in and of itself make an individual a cost estimate or cost analysis expert. His knowledge and experience is perforce limited to that of his own company." (Id at 8.) Kaplan based his cost analysis on the "per unit" manufacturing costs of his own business but never offered any explanation or conducted any research regarding the relationship between his company's costs and defendant's. His cost analysis, based on his own company, is therefore unreliable and irrelevant.

In addition to his lack of qualifications and unreliable methodology, there were other problems with Kaplan's proposed testimony. Magistrate Judge Rosemond concluded with the following analysis:

Finally, it must be noted that much too much of the unusual surrounds Mr. Kaplan and his assigned task for this case. It is unclear as to whether or not he has ever billed plaintiff's counsel for his services. The amount of hours expended by him in "designing" and "testing" his strain relief device is less than 30 hours. Mr. Kaplan did not prepare his own report. Plaintiffs counsel prepared the report and presented it to Mr. Kaplan for signature. The ostensible non-reliability of Mr. Kaplan's report and the opinions expressed therein severely taint his status as a qualified expert. The manner in which his expert report was prepared seriously undermines his ability to speak authoritatively about how power cords for submersible pumps should be safeguarded against misuse, or how his design safeguards against misuse. The flaws in his report preparation, the gratuitous nature of his services, and the minuscule amount of time expended in analysis, testing, and thought impact more than the weight to be given his testimony and opinions. They impinge upon his qualifications as an expert.

(Id. at 15-16.) Kaplan's testimony essentially involves either evidence that he is not qualified to have an opinion on or evidence derived from tests that are suspect in their scientific accuracy. Therefore, this Court must agree that his testimony will not assist the jury in determining any issue in this case. For the foregoing reasons, Magistrate Judge Rosemond's Order granting Defendant's Motion to Bar the Testimony of Greg Kaplan is affirmed.

II. Defendant's Motion to Bar Testimony of Michael Morse

Magistrate Judge Rosemond essentially denied defendant's motion to bar the testimony of plaintiffs expert Michael Morse except for the portion of Morse's testimony referring to Kaplan's alternatively designed pump based on the fact that Kaplan's pump and testimony are not admissible.

Determining admissibility of expert testimony under Federal Rule of Evidence 702 is a two-prong analysis. The first prong states that "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify as to matters involving scientific, technical, or other specialized knowledge." Fed.R.Evid. 702. The second prong of Federal Rule of Evidence 702 requires that the evidence being testified to will "assist the trier of fact in ...

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