IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAUL FELD and ADA FELD, :

 :

 Plaintiffs : 

 :

 v. : CIVIL NO. 4:12-CV-01492

 :

PRIMUS TECHNOLOGIES : (Judge Brann) 

CORPORATION and :

VINCE KLARSCH, :

 : 

 Defendants :

MEMORANDUM

April 28, 2015

Currently pending before the Court are two motions in limine filed by the 

Defendants. (ECF Nos. 68, 70). Defendants’ first motion in limine seeks to 

preclude Plaintiffs from introducing “any evidence or testimony that Defendant, 

Vince Klarsch, was negligent in the operation of the forklift, at trial.” (ECF No. 

68). The second motion in limine seeks to preclude “testimony of Plaintiff, Shaul 

Feld, regarding the proper and/or improper operation of forklifts.” (ECF No. 70). 

Briefing has concluded and these motions are now ripe for disposition. For the 

following reasons, Defendants’ motion in limine to preclude Mr. Feld from 

testifying as to the proper and/or improper operation of a forklift is granted.

Defendants’ motion in limine to preclude the introduction of any evidence or 

testimony that Mr. Klarsch was negligent in operating the forklift is denied.

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I. BACKGROUND

On July 31, 2012, Plaintiffs Shaul Feld and Ada Feld (collectively “the 

Felds”) filed a Complaint against Defendant Primus Technologies Corporation 

(“Primus”) and John Doe. (ECF No. 1). This Complaint was subsequently 

amended on February 6, 2014 to name Defendant Vince Klarsch. (ECF No. 42). 

The Felds allege negligence and loss of consortium against both defendants. Id.

On June 9, 2011, Mr. Feld was working as an employee of Orbotech, Inc. 

and was present at Primus’ facility for the installation of a Sprint 100 industrial 

printing machine. Id. at ¶ 9. Mr. Klarsch, while acting within the course and scope 

of his employment, utilized a forklift to move the Sprint 100 to its installation 

location. Id. at ¶ 12. The Felds allege that Primus failed to adequately train its 

employees in the proper use and operation of forklifts. Id. at ¶ 22. Mr. Klarsch 

allegedly did not place the forklift forks completely under the Sprint 100 and, as a 

result, the Sprint 100 began falling toward Mr. Feld. Id. at ¶ 15. This resulted in

“severe and permanent injury” to Mr. Feld. Id. at ¶ 16. 

II. LEGAL STANDARD

A motion in limine is filed prior to trial and requests that the judge rule the 

admissibility of certain at trial. See Leonard v. Stemtech Health Sciences, Inc., 981 

F.Supp.2d 273, 276 (D.Del. 2013) (citing Laufen Int’l, Inc. v. Larry J. Lint Floor & 

Wall Covering, Co., No. 2:10-cv-199, 2012 WL 1458209, at * 1 (W.D.Pa. Apr. 27, 

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2012); Bradley v. Pgh Bd. Of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990). 

Evidence should only be excluded on a motion in limine if it is clearly inadmissible 

on all potential grounds. Id. The movant bears the burden of demonstrating that 

the evidence is inadmissible on all potential grounds. Id.

III. DISCUSSION

In diversity actions, the admissibility of evidence is generally governed by 

the Federal Rules of Evidence rather than state evidentiary rules. See, Joy Mfg. 

Co. v. Sola Basic Indus., Inc., 697 F.2d 104, 110 (3d Cir. 1982) (“[i]n diversity 

cases, the admissibility of nonexpert opinion testimony is governed by the Federal 

Rules of Evidence”); Haddigan v. Harkins, 441 F.2d 844, 851 (3d Cir. 1970) 

(“admission of . . . expert testimony . . . presents only an evidentiary question . . . 

[t]hus, we need not concern ourselves with how a Pennsylvania court would rule, 

but can look to federal authorities favoring admissibility”); Rolick v. Collins Pine 

Co., 975 F.2d 1009, 1013 (3d Cir. 1992) (“Since the question involves the 

admission of evidence in a federal court, the Federal Rules of Evidence control”). 

The Federal Rules of Evidence provide that

If [a] witness is not testifying as an expert, the witness' testimony in 

the form of opinions or inferences is limited to those opinions or 

inferences which are (a) rationally based on the perception of the 

witness and (b) helpful to a clear understanding of the witness' 

testimony or the determination of a fact in issue.

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Fed. R. Evid. 701. In recent years, the United States Court of Appeals for the 

Third Circuit has expanded its jurisprudence to permit lay persons to express 

opinions “which approach the ambit of Rule 702 expert opinion.” Asplundh Mfg. 

Div., a Div. of Asplundh Tree Expert Co. v. Benton Harbor Eng'g, 57 F.3d 1190, 

1198 (3d Cir. 1995).

Thus, the Third Circuit has concluded that “a lay witness with first-hand 

knowledge can offer an opinion akin to expert testimony in most cases, so long as 

the trial judge determines that the witness possesses sufficient and relevant 

specialized knowledge or experience to offer the opinion.” Id. at 1201-02

(emphasis in original). However, the Court explained that

the admissibility of opinion evidence under the strictures of Rule 701 

is not without limit. Rule 701's requirement that the opinion be 

“rationally based on the perception of the witness” demands more 

than that the witness have perceived something firsthand; rather, it 

requires that the witness's perception provide a truly rational basis for 

his or her opinion. Similarly, the second requirement—that the 

opinion be “helpful to a clear understanding of the witness's testimony 

or the determination of a fact in issue” - demands more than that the 

opinion have a bearing on the issues in the case; in order to be 

“helpful,” an opinion must be reasonably reliable. In other words, 

Rule 701 requires that a lay opinion witness have a reasonable basis 

grounded either in experience or specialized knowledge for arriving at 

the opinion that he or she expresses.

Id. at 1201 (emphasis in original).

Turning to Defendants’ motions, it is apparent that the proper or improper 

operation of a forklift is outside the ken of the average layperson. In that regard, 

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the Occupational Safety and Health Administration (“OSHA”) classifies a forklift 

as a powered industrial truck, and has promulgated rules regarding the training 

necessary for an employee to operate a forklift. See generally, 29 C.F.R. § 

1910.178. In 1998, OSHA modified its training requirement “to improve the 

training of [forklift] operators” with the express intention of reducing “the number 

of injuries and deaths that occur as a result of inadequate operator training.” 

Powered Industrial Truck Operator Training; Final Rule, 63 Fed. Reg. 66237-

66274 (Dec. 1, 1998). This training mandates that an operator be trained on, inter 

alia: operating instructions, warnings, and precautions; differences between 

forklifts and automobiles; fork operation and use limitations; and operating 

limitations. 29 C.F.R. § 1910.178 (l)(3)(i). 

These mandates are indicative of the unique nature of forklifts and other 

industrial trucks. Forklifts are complex pieces of machinery whose operation 

differs from other machines that laypeople may be familiar with, such as motor 

vehicles. See, Bibbs v. Se. Pa. Transp. Auth., No. 2333 C.D. 2009, 2012 WL 

8704635, at *3 (Pa. Commw. Ct. Apr. 13, 2012) (“a forklift is a highly specialized 

piece of machinery, the operation of which the average person is not familiar”). 

This conclusion comports with Mr. Feld’s own understanding of the unique nature 

of forklifts. In a previous deposition, Mr. Feld was asked “[a]re you qualified to 

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discuss the proper operation of a forklift?” (ECF No. 57, p. 6). In response, Mr. 

Feld stated: “I don’t think so. I was never trained to drive a forklift.” Id. 

Consequently, some specialized training or experience is required before an 

individual may testify as to the proper or improper operation of a forklift. Mr. Feld 

plainly does not possess the experience necessary to give such testimony.1 

Therefore, the Court will grant Defendants’ motion in limine to preclude Mr. Feld 

from offering testimony as to the proper and/or improper operation of a forklift. It 

bears emphasizing that Mr. Feld may still testify to what he personally witnessed 

or observed on the day he was present at Primus’ facility. He is only precluded 

from testifying as to whether those observations are in accordance with the proper 

operation of a forklift.

However, Defendants’ attempt to exclude any evidence or testimony that 

Mr. Klarsch was negligent is far too broad. While the Court agrees that Mr. Feld is 

not capable of offering testimony as to the proper operation of a forklift, there is 

potentially admissible evidence that could demonstrate Mr. Klarsch was negligent 

in the operation of the forklift. 

 

1 Mr. Feld previously testified that he could not recall ever witnessing a machine being moved on 

a forklift from a delivery truck to its ultimate destination. (ECF No. 57, p. 6). Mr. Feld stressed 

that he had not “seen enough forklifts and enough of [his] machinery on forklifts to be 

comfortable around forklifts.” Id. Mr. Feld further stated that he did not feel qualified to discuss 

the proper operation of a forklift. Id. In their counter-statement of undisputed materials facts, 

Plaintiffs asserted that Mr. Feld’s “purpose at Primus was not to supervise the movement of the 

machine; rather he was ‘only supposed to install the machine.’” (ECF No. 52, p. 3). Those facts 

establish that Mr. Feld possesses neither the training nor the experience necessary to testify as to 

the proper operation of a forklift.

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Mr. Feld is capable of testifying to what he personally witnessed on the day

of the alleged accident, including his observation that the forklift forks were not 

placed entirely under the Sprint 100 machine. See (ECF No. 79, Ex. C, 62:13-16). 

Furthermore, Mr. Klarsch has the requisite training and expertise to testify to the 

proper or improper operation of a forklift. See (ECF No. 86, Ex. E). The fact that 

Plaintiffs’ intend to call Mr. Klarsch as a lay witness rather than an expert witness 

is of no import; he may testify to the proper operation of a forklift. Asplundh, 57 

F.3d at 1201-02. Thus, Plaintiffs may properly place before the jury questions 

regarding whether Mr. Klarsch was negligent in the operation of the forklift. For 

that reason, Defendants’ motion in limine to exclude such evidence is denied.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion in limine to preclude Mr. 

Feld from testifying as to the proper and/or improper operation of a forklift is 

granted. Because potentially admissible evidence exists that could establish Mr. 

Klarsch was negligent in the operation of the forklift, Defendants’ motion in limine

to preclude Plaintiffs’ from introducing such evidence is denied.

BY THE COURT

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

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