2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-2002

Scrofani v. Stihl Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3773

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Recommended Citation

"Scrofani v. Stihl Inc" (2002). 2002 Decisions. Paper 482.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 01-3773 

 __________ 

 

 JOSEPH SCROFANI; 

 CAROL SCROFANI, per quod 

 

 v. 

 STIHL INCORPORATED, its agents, 

 servants and/or employees; 

 STIHL NORTHEAST, its agents, 

 servants and/or employees; 

 YORK-HUNTER, its agents, 

 servants and/or employees; 

 ABC CORPORATIONS 1-10, their agents, 

 employees and/or servants; 

 JOHN DOES, 1-25, (Said names 

 being fictitious representing 

 principals, officers, agents, 

 and employees of defendant 

 corporations), jointly, 

 severally and/or individually 

 

 YORK-HUNTER, 

 Third-Party Plaintiff 

 v. 

 BENFATTO CONSTRUCTION CORPORATION, 

 Third-Party Defendant 

 Joseph Scrofani; 

 Carol Scrofani, 

 Appellants 

 __________ 

 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 D.C. Civil No. 99-cv-04711 

 Magistrate Judge: The Honorable Stanley R. Chesler 

 __________ 

 

 Argued July 22, 2002 

 __________ 

 

 Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges 

 (Opinion Filed: August 6, 2002) 

 ____________ 

Richard S. Mazawey, Esquire (Argued) 
Suite 211 

1135 Broad Street 

Clifton, NJ 07013 

Attorney for Appellant 

James H. Walsh, Esquire (Argued) 

McGuireWoods 

901 East Cary Street 

One James Center 

Richmond, VA 23219 

 -and 

Robert A. Sachs, Esquire 

Monte, Sachs & Borowsky 

800 The Plaza 

P.O. Box 255 

Sea Girt, NJ 08750 

Attorneys for Appellees 

 ____________ 

 

 OPINION 

 ____________ 

BARRY, Circuit Judge 

 Plaintiffs Joseph and Carol Scrofani brought suit against Stihl, Inc. and Stihl 

Northeast (collectively "Stihl"), in addition to York-Hunter, Inc., for various torts under 

New Jersey law. The suit arose from burn injuries that Mr. Scrofani sustained at a YorkHunter construction site on August 4, 1997, while he was using a gasoline-powered saw 

that was manufactured and sold by Stihl. The Court granted Stihl’s motion to exclude as 

unreliable the testimony of plaintiffs’ expert witness. It also denied plaintiffs’ motion 

pursuant to Federal Rule of Evidence 104 for a Daubert hearing to assess their expert’s 

qualifications. The Court then granted Stihl and York-Hunter’s motions for summary 

judgment. Plaintiffs filed a timely notice of appeal, but subsequently settled with YorkHunter. They now challenge the exclusion of the testimony of their expert, the denial of 

a Daubert hearing, and the grant of summary judgment to Stihl. We have jurisdiction 

pursuant to 28 U.S.C. 1291. For the reasons that follow, we will affirm. 

 Because the parties are familiar with the underlying facts, we need not recite them 

in detail here. Plaintiffs argue that Stihl is liable for the manufacturing and sale of the 

Stihl Model TS-350 cut-off saw ("TS-350 saw") in or around 1994. Specifically, they 

assert that Mr. Scrofani was injured by the TS-350 saw because it (1) was defectively 

designed and (2) contained inadequate warnings. To prove these theories of liability, 

plaintiffs relied almost exclusively on the opinions of expert witness Russell Fote, which, 

as noted, were excluded from evidence. The Supreme Court has emphasized that "the 

trial judge must have considerable leeway in deciding . . . whether particular expert 

testimony is reliable." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1997). 

We review the Court’s decision to exclude expert testimony for abuse of discretion. 

United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001). 

 To be admissible, expert testimony must "not only [be] relevant, but reliable." 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Even if a 

witness is qualified as an expert, he or she may only testify 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. 

Fed. R. Evid. 702. Here, it is abundantly clear that what Fote had to say as to both the 

defective design and inadequate warning claims was not reliable and that the Court did 
not abuse its discretion in excluding Fote’s testimony. As the Court observed with 

respect to design defect, Fote’s opinions were not based upon sufficient data, nor were 

they the product of reliable methods applied to the facts in a reliable manner; indeed, 

Fote "employed absolutely no methodology at all," merely setting forth "a series of 

unsubstantiated opinions." As for the failure to warn, the Court concluded that Forte’s 

report "gave no clue" as to how he reached the "bald conclusion" he reached and "more 

than suggests" that he did not even read the warnings which accompany the TS-350 saw 

which, in any event, were the same warnings Fote described as necessary. 

 Moving to the next issue, plaintiffs claim that a Daubert hearing would have 

established Fote’s qualifications as an expert. Even if the Court had concluded that Fote 

was a qualified expert, however, and it did not find that he was not, it would have been 

proper to exclude the evidence he proffered because, as noted above, he failed to base his 

conclusions on sufficient data and his methodologies were either nonexistent or wholly 

unreliable. Accordingly, the Court did not err in refusing to grant plaintiffs’ request for a 

Daubert hearing. Oddi v. Ford Motor Co., 234 F.3d 136, 153-54 (3d Cir. 2000). 

 Finally, plaintiffs argue that the Court erred when it granted summary judgment in 

favor of Stihl on the defective design and inadequate warning claims. We exercise 

plenary review over a grant of summary judgment. Pacitti v. Macy’s, 193 F.3d 766, 772 

(3d Cir. 1999). Under the New Jersey Products Liability Act, a manufacturer or seller 

may be held strictly liable for harms caused by a product where (1) the product suffered a 

manufacturing defect, (2) the product was defectively designed, or (3) the product 

warnings were inadequate. N.J.S.A. 2A:58C-2; Roberts v. Rich Foods, Inc., 139 N.J. 

365, 375 (1995). To establish liability, a plaintiff must prove by a "preponderance of the 

evidence that the product causing the harm was not reasonably fit, suitable or safe for its 

intended purpose." N.J.S.A. 2A:58C-2. 

 Plaintiffs assert that the fuel cap design of the TS-350 saw was defective, causing 

fuel leakage which combusted and seriously burned Mr. Scrofani. To establish a design 

defect claim, a plaintiff "must prove either that the product’s risks outweighed its utility 

or that the product could have been designed in an alternative manner so as to minimize 

or eliminate the risk of harm." Lewis v. American Cyanamid Co., 155 N.J. 544, 570 

(1998). Plaintiffs must also prove that such an alternative design was "practical and 

feasible." Id. at 571. Plaintiffs utterly failed to meet their burden, as the Court correctl

found, and do not seriously press this claim before us. 

 Summary judgment for Stihl was also proper on plaintiffs’ inadequate warning 

claim. "A duty to warn is consonant with a manufacturer’s broader duty to place in the 

stream of commerce only products that are reasonably safe." Coffman v. Keene Corp., 

133 N.J. 581, 598 (1993). To establish his claim, Mr. Scrofani was required not only to 

prove that the warnings were inadequate, but that they were the proximate cause of his 

injury. When evaluating causation, it is presumed that an injured party "would have 

followed an adequate warning had one been provided." Id. at 603. The defendant may 

rebut this presumption, however, by producing "evidence that such a warning would not 

have been heeded." Id. 

 Even if the existing TS-350 saw warnings were inadequate, Stihl submitted 

ample evidence to rebut the presumption that Mr. Scrofani would have heeded an 

adequate warning. Scrofani testified that, at the moment of his accident, he was well 

aware of the risks of using the TS-350 saw and that he was very familiar with the 

information in the product manual. Nevertheless, he acted in direct contravention of 

numerous warnings contained therein. This disregard of existing warnings demonstrates 

that Scrofani would have ignored the most perfect of warnings. "Evidence that a 

plaintiff would have disregarded an adequate warning . . . tend[s] to demonstrate that the 

plaintiff’s conduct, rather than the absence of a warning, was the cause in fact of the 

resultant injury." Coffman, 133 N.J. at 604. Because plaintiffs submitted no evidence 

indicating that a different warning would have prevented this accident, the grant of 

summary judgment in favor of Stihl was proper. 

 For the foregoing reasons, we will affirm. 

 TO THE CLERK OF THE COURT: 

 Kindly file the foregoing Opinion. 

 /s/ Maryanne Trump Barry 
 Circuit Judge 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 01-3773 

 

 

 JOSEPH SCROFANI; 

 CAROL SCROFANI, per quod 

 

 v. 

 STIHL INCORPORATED, its agents, 

 servants and/or employees; 

 STIHL NORTHEAST, its agents, 

 servants and/or employees; 

 YORK-HUNTER, its agents, 

 servants and/or employees; 

 ABC CORPORATIONS 1-10, their agents, 

 employees and/or servants; 

 JOHN DOES, 1-25, (Said names 

 being fictitious representing 

 principals, officers, agents, 

 and employees of defendant 

 corporations), jointly, 

 severally and/or individually 

 

 YORK-HUNTER, 

 Third-Party Plaintiff 

 v. 

 BENFATTO CONSTRUCTION CORPORATION, 

 Third-Party Defendant 

 Joseph Scrofani; 

 Carol Scrofani, 

 Appellants 

 

 __________ 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 D.C. Civil No. 99-cv-04711 

 Magistrate Judge: The Honorable Stanley R. Chesler 

 __________ 

 

 Argued July 22, 2002 

 

 

 Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges 

 ____________ 
 JUDGMENT 

 ____________ 

 This cause came to be heard on the record from the United States District Court 

for the District of New Jersey and was argued on July 22, 2002. 

 After consideration of all contentions raised by the appellants, it is 

 ADJUDGED and ORDERED that the denial of a Daubert hearing and the grant of 

summary judgment in favor of Stihl be and hereby are affirmed. Costs taxed against 

appellants. All in accordance with the Opinion of the Court. 

 ATTEST: 

 

 Acting Clerk 

Dated: 6 August 2002