Viking Yacht Co. v. Composites One LLC, Civ. No. 05-538 (JEI/JS).

• Decision Date: 14 May 2009
• Docket Number: Civ. No. 05-538 (JEI/JS).
• Citation: 613 F.Supp.2d 637
• Parties: VIKING YACHT COMPANY, a New Jersey Corporation; and Post Marine Co., Inc., a New Jersey Corporation, Plaintiffs, v. COMPOSITES ONE LLC, a Foreign Limited Liability Company; Curran Composites, Inc., a Missouri Corporation; C Two LLC, a Foreign Limited Liability Company; and Total Composites, Inc., a Delaware Corporation joint d/b/a/ Cook Composites and Polymers, a fictitiously named Delaware Partnership, Defendants.
• Court: U.S. District Court — District of New Jersey

613 F.Supp.2d 637

VIKING YACHT COMPANY, a New Jersey Corporation; and Post Marine Co., Inc., a New Jersey Corporation, Plaintiffs, v. COMPOSITES ONE LLC, a Foreign Limited Liability Company; Curran Composites, Inc., a Missouri Corporation; C Two LLC, a Foreign Limited Liability Company; and Total Composites, Inc., a Delaware Corporation joint d/b/a/ Cook Composites and Polymers, a fictitiously named Delaware Partnership, Defendants.

Civ. No. 05-538 (JEI/JS).

United States District Court, D. New Jersey.

May 14, 2009.

Henry J. Tyler, Esq., Mullica Hill, NJ, Berger Singerman, by Michael O. Weisz, Esq., Miami, FL, for Plaintiffs.

Buchanan Ingersoll PC, by Steven E. Bizar, Esq., Landon Y. Jones, Esq., Philadelphia PA, by P. Kevin Bobson, Esq., Harrisburg, PA, for Defendant Cook Composites and Polymers.

OPINION

IRENAS, Senior District Judge:

Presently before the Court is Plaintiffs' Motion to Exclude Portions of the Report and Testimony of Defendant's Chemical Expert A. Brent Strong, Ph.D. (Docket No. 159). The Court has reviewed the submissions of the parties, and for the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part.

I.

Viking Yacht Company ("Viking") and Post Marine Co., Inc. ("Post") (collectively, "Plaintiffs") are luxury yacht manufacturers. They brought suit against Defendant Cook Composites and Polymers, Co. ("CCP") to recover damages resulting from the cracking of gel coats on yachts Plaintiffs manufactured using CCP's 953 Series gel. The Court has extensively discussed the facts and history of this case in its previously issued opinions on cross Motions for Summary Judgment, Motions for Reconsideration, the more recent Motion to Bifurcate the Trial of Liability and Damages.¹ As a result of this Court's previous holdings, Plaintiffs' surviving claims are: (1) breach of express warranty, (2) fraudulent misrepresentation, and (3) violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2.

CCP retained Dr. Strong, who holds a Ph.D. in chemistry and is a professor of mechanical engineering technology at Brigham Young University, as a liability expert. He was asked to do the following:

(1) examine the chemical natures of the 952 Series and 953 Series gel coats and to determine, from the basic chemical principles, which of the gel coats is more likely to have a higher elongation; (2) examine the proprietary test for elongation used by CCP (called the PE-210 test) to determine if the test procedures are appropriate for such determinations, and to use the test in conducting a study using statistical methods to verify the elongations of the 952 Series and 953 Series gel coats; and (3) comment on the opinion given by Professor Caruthers who has been retained by the Plaintiffs and their counsel as a scientific liability expert in this case.

(Strong Rep. ¶ 3.) In preparing his report, Dr. Strong visited both of Plaintiffs' facilities, visually inspected several boats at a marina on the New Jersey shore, performed a statistical analysis of the PE-210 test, consulted other scholars' works, and reviewed other evidence in this case.

Dr. Strong's report is divided into several sections: an "Introduction" (Id. ¶¶ 1-6), "Chemical Theory Related to Gel Coats and Composite Materials" (Id. ¶¶ 7-37), "Chemical Formulation Analysis for Elongation" (Id. ¶¶ 38-50), "Elongation Testing" (Id. ¶¶ 51-72), "Weathering, UV Degradation, and Thermo-oxidative Degradation" (Id. ¶¶ 73-88), and a "Summary of Conclusions" (Id. ¶¶ 89-93).

In the instant Motion, Plaintiffs object to the majority of the "Chemical Theory" section as well as two of Dr. Strong's overall "Conclusions." Specifically, they seek to exclude (1) paragraphs 12, 17-32, 34, 36-37, 91, and 92 in their entirety, (2) all but the first three sentences of paragraph 33, (3) all but the first sentence of paragraph 35, and (4) the first phrase of paragraph 38.

For the foregoing reasons, Plaintiffs' Motion will be granted in part and denied in part.

II.

"Under the Federal Rules of Evidence, it is the role of the trial judge to act as a `gatekeeper' to ensure that any and all expert testimony or evidence is not only relevant, but also reliable." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir.1997) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Federal Rule of Evidence 702 "has three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir.2008) (Irenas, S.D.J., sitting by designation).<sup>2</sup> Admissibility under the third requirement, the "fit" requirement, "depends in part on `the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case.'" In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir.1994) (quoting United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985)). "The burden is on the proponent of the testimony to prove its admissibility by a preponderance of proof." NN&R, Inc. v. One Beacon Ins. Group, No. 03-5011, 2006 WL 2845703, at *2 (D.N.J. Sept.29, 2006).

"An expert opinion is not admissible if the court concludes that an opinion based upon particular facts cannot be grounded upon those facts." Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir.1996). Further, "if an expert opinion is based on speculation or conjecture, it may be stricken." Id.; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ("But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.").

III.

A.

The majority of Plaintiffs' objections to Dr. Strong's report relate to his conclusion that something other than the failure of the 953 Series gel caused the cracking,³ and his general discussion of alternative causes for gel coat cracking which, in part, formed the basis of that opinion.⁴ Plaintiffs argue that Dr. Strong's conclusions are unreliable because they were outside the scope of his engagement, that he did not test his opinions, and that his methodology of relying extensively on others' research and reports was inappropriate.⁵ However, CCP argues that the opinions Dr. Strong intends to offer are both limited in nature, and within the scope of his engagement. Specifically, CCP states in its brief that Dr. Strong is not being offered to pinpoint what the cause of the gel coat cracking was, but rather, for the opinion that because "a gel coat formulation error was not the cause of cracking . . . that the cause of the gel coat cracking was therefore likely one of the other well-documented general causes of gel coat cracking." (Def. Br. at 6.) Importantly, Plaintiffs do not challenge the testing Dr. Strong did perform on the gel,⁶ nor his direct refutation of Dr. Caruthers's conclusions.⁷ Additionally, CCP argues that it was appropriate under Rule 703 for Dr. Strong to have relied on the available literature and other evidence in the case in forming his opinions.

In their brief, Plaintiffs attempt at length to persuade the Court that Dr. Strong's conclusion, that "[t]he formulation of the 953 Series gel coat is appropriate," is outside the scope of his engagement, and that no testing was done to support this conclusion. (Strong Rep. ¶ 91.) Plaintiffs both misconstrue Dr. Strong's conclusion, and seemingly overlook the testing Dr. Strong did perform. Dr. Strong was engaged by CCP for the purpose of examining the formulations of the 952 and 953 Series gels to see which has a greater flexibility, examine CCP's proprietary testing to verify the results, and to directly refute the opinions of Plaintiffs' chemicals expert Dr. Caruthers. (See Strong Rep. ¶ 3.)

Dr. Strong does not deny that he did not conduct any testing to determine whether the other possible causes were the actual cause of the cracking in this case. (See, e.g., Strong Dep. 124:16-125:13, 139:16-23, 188:17-23, 231:21-232:11.) However, he also explains that he was not engaged for the purpose of rendering an opinion on the ultimate cause of the gel cracking. (See Strong Rep. ¶ 3; see, e.g., Strong Dep. 13:7-10, 15:18-16:8, 261:12-262:16.) This point is important because it explains why Dr. Strong did not conduct any additional tests. (See, e.g., Strong Dep. 125:11, 139:22-23.) Rather than impugn the reliability Dr. Strong's conclusions, this supports CCP's explanation of their limited nature: "[T]hat the cracking experienced in some Viking and Post yachts was not caused by a relative lack of flexibility in 953 Series gel coat, but rather resulted from `some factor beyond or outside CCP's control (such as the design, manufacturing, use, environment, etc.)'" (Def. Br. at 21-22 (quoting Strong Rep. ¶ 91).) Simply stated, Dr. Strong offers an opinion on what the cause was not, but no conclusive opinion on what the cause was.

With this limitation on Dr. Strong's opinion in mind, the Court will examine whether the testing Dr. Strong performed form a reliable basis for his opinion. As noted above, Dr. Strong did in fact repeat the PE-210 test, as well as conduct a statistical analysis of the results, and Plaintiffs do not object to this portion of his report. See supra Note 6.⁸

Plaintiffs' more serious objection seems to be to Dr. Strong's corollary opinion that the cracking was likely caused by something other than a defect in the formulation of the 953 Series gel coat. To that end, Plaintiffs point to instance after instance in Dr. Strong's deposition where he states that he did not test...