The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Amended Memorandum Opinion and Order*fn1 This case is before the Court on defendants' motions for summary judgment and motions to strike plaintiff's designation of an expert witness. Plaintiff responded to the motions and separate defendant Harris Waste Management Group, Inc. ("Harris") filed replies to plaintiff's responses. For the reasons stated below, the motions are denied.
At the time of his death, Matthew Jordan Dalrymple ("Jordan"), was employed by Jefferson County, Arkansas, as a general laborer at the Jefferson County recycling facility. Although there were no eyewitnesses, the evidence suggests that on August 1, 2002, Jordan climbed up the conveyor to clear a jam at the compacter hopper, fell into the compaction chamber, and was crushed between the edge of the compaction chamber and the baler ram.*fn2 The subject baler was designed by Harris on or about 1985, and manufactured by Harris on or about 1997. On or about 2001, separate defendant IPS Balers, Inc. ("IPS") purchased the baler from Lin Pac, Inc. IPS then sold the baler to Jefferson County Recycling Center on or about January 2002.
The baler was shipped in three sections to Jefferson County for installation. Mr. Jim Fox contracted with IPS to install the baler and a conveyor to be used with the baler for Jefferson County. Mr. Fox and others installed the baler and conveyor at the Jefferson County recycling facility in mid-January 2002. Separate defendant Harris did not manufacture the conveyor installed at the recycling facility.
Plaintiff Stevan Dalrymple, individually and as special administrator of Jordan Dalrymple's Estate, brings this suit asserting claims of negligence, strict product liability, and breach of warranty against Harris and IPS. He asserts the baler manufactured by Harris and the baler/conveyor system put into the stream of commerce by Harris and IPS was defective and unreasonably dangerous. Plaintiff also argues the training manual furnished by Harris and used by Fox to train the Jefferson County employees was incorrect, specifically concerning a switch on the baler. He claims defendants failed to give reasonable and adequate instruction concerning safety conditions and methods for the system's operation, and failed to warn of dangers inherent in the product's use. Plaintiff further asserts Harris breached an implied warranty of merchantability, and that IPS breached an implied warranty of fitness for a particular purpose. In addition to compensatory damages, plaintiff seeks punitive damages.
Separate defendant IPS moves for summary judgment on the basis of plaintiff's expert witness's testimony that the faults of the baler are the result of original design defects due to the absence of certain safety features that could have been incorporated into the original design. IPS argues that it did not design or manufacture the baler, and did not modify it or the conveyor in any way that would have contributed to the accident. It further contends that through Fox, it provided all the training it was contractually obligated to provide; it violated no duty to anyone and thus is entitled to summary judgment on the negligence and breach of warranty claims; and because the alleged defects are all design-related, any liability would pass through to Harris. IPS also seeks summary judgment on plaintiff's claim for punitive damages. In addition, IPS moves to strike plaintiff's designation of Igor Paul as expert witness.*fn3
Separate defendant Harris moves to strike Paul as plaintiff's expert witness and moves for summary judgment on the basis that Paul's testimony should be excluded under the principles of Daubert. Defendant Harris contends that without the testimony of Paul, plaintiff cannot prove his strict liability or negligence claims. It also argues that there is no evidence to support plaintiff's breach of warranty claim against Harris. In a separate motion, Harris argues it is entitled to summary judgment on plaintiff's claim for punitive damages.
I. Admissibility of Igor Paul's Testimony Pursuant to Daubert
After plaintiff filed suit, he designated Igor Paul, PhD., to provide expert testimony regarding defective design, warnings, instructions, and negligence. Dr. Paul is the only expert plaintiff has designated to provide testimony on these subjects.
Dr. Paul received a doctoral degree in mechanical engineering from the Massachusetts Institute of Technology ("MIT") in 1964, specializing in machine and product design and industrial control systems. As a professor of mechanical engineering at MIT for 39 years, he taught industrial machine and product design and automatic control systems to undergraduate and graduate students and conducted research in these areas until he retired in 2003. He has been a registered professional engineer for over 39 years,*fn4 and has over 80 publications in the areas of designing, engineering, education, solid waste disposal, transportation, and bioengineering.
In his November 14, 2003, report, and during his deposition, Dr. Paul advanced five alternative design theories in support of his opinion that the design of the Harris baler and its control system was defective. He testified that there should have been an interlock system on the conveyor and/or at the conveyor/hopper infeed transition area which would automatically stop power to the compactor and the conveyor when a worker tried to get access to that area to clear a jam. He testified there should have been a set of handrails at the top of the conveyor sidewalls with emergency trips which would shut down power to the conveyor and compactor when someone was climbing to the top of the conveyor. Dr. Paul said the baler was defective because it did not have consistent, logical, and well-marked baler operating control switches, and because it did not have emergency stop controls which would automatically return the compacting ram to the retracted position if the emergency stop was activated during the compacting stroke of the ram. Lastly, he said there should have been proper warnings and instructions on the operator console, platform, and equipment describing safe procedures for clearing jams.
In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Supreme Court charged trial judges with the responsibility of acting as "gatekeepers" to ensure that expert testimony is founded on valid and reliable scientific knowledge. Subsequently, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court made it clear that the Daubert standard applies to all "expert" testimony and not just purely "scientific" expert testimony. In 2000, Federal Rule of Evidence 702 was amended in response to Daubert and Kumho. It 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, if (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.
Daubert set forth a non-exclusive list of factors a court can use in assessing the reliability of scientific expert testimony: whether the expert's technique or theory can be or has been tested; whether the technique or theory has been subject to peer review and publication; the rate of error associated with the technique or theory; and whether the technique or theory has been generally accepted in the scientific community. See Daubert, 509 U.S. at 593-94. As Kumho recognized, these factors do not constitute a definitive list, but rather must be tied to the facts of the particular case. 526 U.S. at 150. The Daubert factors "'may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.' . . . Too much depends upon the particular circumstances of the particular case at issue." Id. The objective is to ensure the reliability and relevancy of expert testimony. Id. at 152.
Harris argues Paul's testimony is inherently unreliable and will not assist the jury in understanding any fact at issue. Citing Unrein v. Timesavers, Inc., 394 F.3d 1008 (8th Cir. 2005), Jaurequi v. Carter Mfg. Co., 173 F.3d 1076 (8th Cir. 1999), and Peitzmeir v. Hennessy Indus., Inc., 97 F.3d 293 (8th Cir. 1996), Harris contends Paul's alternative design theories have not been tested and Paul has not prepared any drawings or diagrams to support his alternative designs. It argues Paul failed to submit any practical information to support his alternate baler designs which would allow proper testing and analysis to occur; never designed a baler or baling system like the one involved in the accident; has not tested any of the design alternatives he is proposing for the subject baler; has not performed any studies or analysis of balers for this case; and is not aware of any baler manufacturers that have implemented even one of his design alternatives. In addition, Harris states that while Paul's alternate design theories have not been the subject of ...