### 2000 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-13-2000 

# O ddi v . F or d M ot or C o

.

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-3406

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2000

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2000 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" O dd i v . F or d M ot or C o

. " (2000). 2000 D e cisio n s

. P a pe r 220.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2000/220Filed October 13, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3406

DAVID ODDI; ERIN ODDI, His Wife

v.

FORD MOTOR COMPANY; GRUMMAN ALLIED INDUSTRIES INC.; GRUMMAN
OLSON BODIES, INC.; OLSON BODIES, INC.

v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION,

Third Party Defendant

DAVID ODDI,

Appellant

Appeal from the United States District Court for the Western District of Pennsylvania

Civil Action No. 95-cv-01341 District Judge: Hon. Robert J. Cindrich

Argued: May 9, 2000

Before: GREENBERG and McKEE, Circuit Judges, and GARTH, Senior Circuit Judge

(Opinion filed: October 13, 2000)PAUL A. TERSHEL, ESQ. (Argued)

MARY CHMURA CONN, ESQ.
Tershel & Associates Helena Professional Building

55 South Main Street Washington, PA 15301 Attorneys for Appellant

JOHN E. WALL, ESQ. (Argued)
MICHAEL F. NERONE, ESQ. Dickie, McCamey & Chilcote, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Attorneys for Appellee, Ford Motor Company

JOHN H. WILLIAMS, ESQ. (Argued) Gorr, Moser, Dell & Loughney

437 Grant Street 1300 Frick Building Pittsburgh, PA 15219 Attorneys for Appellee, Grumman Allied Ind., et al.

OPINION OF THE COURT

McKEE, Circuit Judge.

David Oddi was catastrophically injured in a one-ve hicle accident when the truck he was driving struck a gua rdrail and a bridge abutment. Thereafter, he filed two sep arate product liability actions in state court. He sued F ord Motor Company, which designed and manufactured the chassi s of the truck, and he brought a separate action against Grumman Allied Industries, Inc. (then known as Olso n Bodies, Inc), which designed and manufactured thefi nished

truck. Ford and Grumman removed the actions to the district court where they were consolidated.1 Ford and

___________________________________________________ ______________

1. Jurisdiction in the district court was premised upon diversity of citizenship. 28 U. S. C. S 1332. Oddi is a citizen of Pennsylvania. Ford is a Delaware corporation and Grumman is a New York corporation.

2Grumman eventually moved for summary judgment based

upon their contention that Oddi could not establish a prima facie case because his proposed expert testimony fa iled to satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). The di strict court agreed and granted summary judgment in favor of Ford and Grumman, and against Oddi. The district co urt subsequently denied Oddi's motion for reconsiderati on, and this appeal followed. For the reasons that follow, we will

affirm.

I. FACTS AND PROCEDURAL HISTORY.

On June 21, 1993, Oddi was driving a bread truck ow ned and maintained by Continental Baking Company. He wa s proceeding northbound at exit 14 of Interstate 79 n ear Pittsburgh, Pennsylvania, at approximately 55 to 60 miles an hour when the truck struck a guardrail and bridg e abutment. Oddi's legs were crushed so badly by the force of the accident that they both had to be amputated. Od di's left arm was also permanently injured.

The truck was a 1976 special order Ford M-5000 Stripped Chassis that Continental had ordered throu gh a Ford dealership for use as a bread delivery truck. When the truck left Ford's possession and control it was com prised only of basic component parts such as frame rails, axles, engine, drive train, wheels and a front bumper. Con tinental took delivery of the Stripped Chassis and delivered it to Grumman for the design and manufacture of the finis hed vehicle. Grumman designed and manufactured all necessary aspects of the vehicle pursuant to Contin ental's specifications. This included modifications to the occupant compartment ("cab") and floor boards. Continental h ad used the truck as a bread delivery truck from 1976 through 1993, and it had been driven for hundreds of thousa nds of miles in that capacity before this accident occurre d.2

The suits that Oddi filed after his accident assert ed

___________________________________________________ ______________

2. It is impossible to determine exactly how many m iles it had been driven because the maintenance records are missing, and the odometer

had turned over an unknown number of times.

3claims against Ford and Grumman under theories of s trict

liability, negligence, breach of warranty and failu re to warn.3 Oddi claimed Ford's defective design of the front b umper of

the bread truck allowed the underside of the truck to ride up or "ramp" onto the guardrail and strike the brid ge abutment.4 He also claimed that after the truck ram ped onto the guardrail, the left front wheel of the tru ck hooked over the rail preventing him from steering away fro m the bridge abutment. He alleged that defects in the cab (designed and manufactured by Grumman) had caused t he flooring to bend upon impact with the bridge abutme nt and apply such force as to crush both his legs. He also alleged that the truck rolled over and down an adjacent embankment after it struck the bridge abutment.

Ford denied any design defects and also denied that the truck ramped the guardrail. According to Ford, the truck simply struck the guardrail and rolled over it. Sim ilarly, Grumman denied that the flooring was deficient or t hat it caused any injury at all.5

Oddi retained two experts to support his contention that his injuries were caused by defects in the manufact ure and design of the truck. John N. Noettl, an engineer, w as retained to testify about the defective design, and Leon Kazarian, a bio-mechanist, was retained to testify about the process by which Oddi received his injuries.

After deposing both of Oddi's experts, Ford and Grumman moved for summary judgment. Ford argued tha t
all of Oddi's claims should be dismissed because Od di's proposed expert testimony could not survive the thr eshold inquiry required under Daubert v. Merrell Dow

___________________________________________________ ______________

3. Oddi also asserted negligence claims against the Commonwealth of Pennsylvania, Department of Transportation ("PennDO T") based upon the design of the guardrails and the bridge abutmen t. However, the

record does not disclose the status of that action.

4. Oddi also asserted steering defects against Ford . However, after discovery, he dismissed those claims.

5. Ford and Grumman also filed third-party complain ts against PennDOT in the removed action in district court. However, t hey subsequently voluntarily dismissed that action. Consequently, Pe nnDOT was no longer a party in the district court action and is not a p arty in this appeal.

4Pharmaceuticals, Inc., 509 U. S. 579 (1993), and, t herefore,

Oddi could not establish a prima facie case. Grumma n did not initially make a specific challenge under Daube rt. Instead, Grumman initially argued only that Oddi's

evidence was either inadmissible or failed to satis fy Oddi's burden of proof.

Oddi responded to the summary judgment motions by filing a brief in opposition, an affidavit of Noett l, and excerpts of Noettl's deposition testimony. Oddi did not request an evidentiary hearing or oral argument, no r did he submit anything else in response to Ford's Daubert challenge.

After reviewing Oddi's submissions in opposition to the summary judgment motions, Grumman filed a reply bri ef in which it argued that Oddi still could not meet his burden of showing that the truck was not crashworthy. Grum man also challenged Oddi's experts under Daubert. Oddi responded by filing a motion to strike Grumman's re ply brief claiming that the district court had not gran ted leave to Grumman to file it. In the alternative, Oddi sou ght leave to submit opposing affidavits if needed.

On March 31, 1999, the district court entered a Memorandum Opinion in which it ruled that Oddi's ex perts did not meet Daubert's admissibility standards. Abs ent the testimony of those experts, Oddi could not establis h a prima facie case of liability, and the district cou rt therefore granted summary judgment in favor of Ford and Grumm an.

Oddi filed a motion for reconsideration in which hi s major argument was that the district court should h ave held a hearing on the Daubert challenge before gran ting summary judgment. However, the district court disag reed and on September 2, 1999, denied his motion for

reconsideration. Oddi then sent a letter to the dis trict court enclosing a copy of our August 2, 1999 decision in Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi argued that Padillas required that an evidentiary h earing be

held so that he could meet the defendants' Daubert challenges. However, the district court disagreed a nd issued a supplemental Memorandum Opinion in which it held that Oddi was not entitled to an evidentiary hearing.

5This appeal followed.

II. THEORIES OF LIABILITY.

Although Oddi based his suits upon several differen t theories of liability, he only appeals the district court's grant of summary judgment on his crashworthiness an d negligent failure to test claims. We will begin our inquiry by discussing each of those theories.

A. Crashworthiness.

"The term crashworthiness means the protection that a motor vehicle affords its passenger against persona l injury

or death as a result of a motor vehicle accident." Kuptez v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. Super. 1994). The doctrine "imposes liability on the manufacturer not for causing the accident, but rather for failing to min imize the injuries or even increasing the severity of the inj uries sustained in an accident brought about by a cause o ther than the alleged defect." Habecker v. Clark Equipme nt Co., 36 F.3d 278, 283 (3d Cir. 1994)("Habecker III"). "[ T]he crashworthiness doctrine permits a plaintiff to rec over for enhanced injuries, i. e., only for those injuries h e can prove he would not have sustained if he had been riding i n a crashworthy vehicle." Carrasquilla v. Mazda Motor C orp., 963 F. Supp. 455, 458 (M. D. Pa. 1997)(citations an d internal quotations omitted). "[I]f enhanced injuri es cannot be shown, then no liability exists as to the manufa cturer."

Id.

Crashworthiness is a subset of products liability l aw.6 Although the Pennsylvania Supreme Court has not yet adopted the crashworthiness doctrine for products l iability cases,7 we have predicted that it would do so in an appropriate case. See Habecker v. Clark Equipment C o., 942

___________________________________________________ ______________

6. "In a typical products liability action in Penns ylvania, a plaintiff

must show: (1) the product was defective; (2) the defect existed while the product was in the control of the manufacturer; and (3) the defect was the proximate cause of the injuries." Habecker III, 36 F.3d at 284.

7. Because this is a diversity case, Pennsylvania p roducts liability law applies. Padillas v. Stork-Gamco, Inc., 186 F.3d 41 2, 413 (3d Cir. 1999).

6F.2d 210 (3d Cir. 1991)("Habecker II").8 To establi sh a

cause of action on a theory of crashworthiness, a p laintiff must show: (1) the design9 of the product was defec tive; (2) an alternative, safer design that was practical exi sted; (3) what injuries, if any, the plaintiff would have rec eived had the alternative design been used; and (4) the defec tive design caused or exacerbated specific injuries. 10 Barker v. Deere and Co., 60 F.3d 158, 161 n.3 (3d Cir. 1995)( citation omitted).

B. Negligent Failure to Test.

Oddi alleged that Ford and Grumman were negligent f or "[f]ailing to do adequate, necessary and proper tes ting of the vehicle prior to the sale which would have reve aled the dangerous condition of the product." Complaint, at P 4r. Oddi refers to this theory of recovery as the tort of "negligent failure to test." Oddi's Br. at 26. He c laims that

its elements are as set forth in 1836 Callowhill St reet v. Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993). Oddi argues that under 1836 Callowhill Street he c an recover under this theory if he establishes that: ( 1) the manufacturer has a duty to test its product; (2) th e manufacturer breached that duty, i. e., the manufac turer did not test; and (3) the breach or the failure to test was the proximate cause of the plaintiff 's injury. Oddi's Br. at 26.

In 1836 Callowhill, the court made several assumpti ons for purposes of ruling on a motion for summary judg ment.

___________________________________________________ ______________

8. The Pennsylvania Superior Court accepted the cra shworthiness doctrine in 1994. Kupetz v. Deere & Co., Inc. , 644 A.2d 1213 (Pa. Super. 1994). The Pennsylvania Supreme Court has subsequen tly, referred to the crashworthiness doctrine, but has not yet offic ially adopted it. See Schroeder v. Commonwealth of Pennsylvania, Departme nt of Transportation, 710 A.2d 23, 28 n.8 (Pa. 1998).

9. We have noted that "[t]he theory of products lia bility is applied to three types of defects: design, manufacturing and m arketing (warnings). The crashworthiness doctrine implicates the overtur es of design defects." Habecker III, 36 F.3d at 283 n.6.

10. It has been suggested that the third and fourth elements of the

crashworthiness doctrine are corollaries. Huddell v . Levin, 537 F.2d 726, 738 (3d Cir. 1976).

7The court assumed that defendant's product was defe ctive,

that the defect caused the alleged damage, and that the defendant had a duty to adequately test the defecti ve product to discover the defect. Nevertheless, the c ourt granted summary judgment to the defendant as to plaintiff 's negligence claim. The court concluded that plaintiff did not "offer[ ] sufficient evidence of a breach of that duty [to] create a genuine dispute of fact." I d. at 465. Consequently, although the court stated, that "[n]e gligent failure to test is cognizable as a common law negli gence theory," 819 F. Supp. at 464-65, that decision cann ot fairly be said to support the proposition that a manufactu rer has a general duty to test a product to determine if it is

defective.

Therefore, even if 1836 Callowhill were precedentia l and correctly stated the law of Pennsylvania, we would still be compelled to conclude that Oddi has cited no author ity that establishes the principle that a manufacturer has a general duty to test its product. We have found no authorit y to support Oddi's contention that Pennsylvania recogni zes an independent tort for "negligent failure to test," a nd Oddi

has offered none.

Rather, it appears that Oddi's "negligent failure t o test" claim is, at bottom, nothing more than a routine pr oducts liability case based on negligence, and that the cl aimed negligence is the failure to test. Under Pennsylvan ia law, in order for an injured party to establish a cause of action against a manufacturer based upon the latter's brea ch of a duty, "the plaintiff must prove, not only that the product was defective and that the defect caused his[/her] injury, but in addition, [the plaintiff must prove] that in manufacturing or supplying the product the defendan t failed to exercise due care." Dambacher v. Malis, 4 85 A.2d 408, 424 (Pa. Super. 1984). Thus, Oddi must first e stablish

that the vehicle was defective.

Thus, whether we view Oddi's theory as crashworthin ess or negligence arising from a failure to test, he mu st establish a defect in the design of the truck in or der to recover, and he must then show that that defect cau sed his injuries. As noted above, he attempted to do this t hrough the proffered expert testimony of John N. Noettl an d Leon

8Kazarian, but the district court refused to admit t heir

expert testimony.

III. STANDARDS FOR ADMISSIBILITY OF

EXPERT TESTIMONY.

Federal Rule of Evidence 702 states:

If scientific, technical, or other specializ ed knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness q ualified as an expert by knowledge skill, experience, tr aining, or education, may testify thereto in the form o f an opinion

or otherwise.

The Supreme Court amplified the operation and scope of Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. There, the Court held that scientific knowle dge requires

an inference or assertion . . . derived by t he scientific method. Proposed testimony must be supported by appropriate validation -- i.e., "good ground s," based on what is known. In short, the requirement tha t an expert's testimony pertain to "scientific kn owledge" establishes a standard of evidentiary reliab ility.

Id. at 590. Rule 702 thus "clearly contemplates som e degree of regulation of the subjects about which an expert may testify." Id. at 589. Consequently, the Court established a "gatekeeping role for the [trial] jud ge." Id. at

597.

[T]he trial judge must determine at the outs et, pursuant to Rule 104(a),11 whether the exper t is proposing to testify to (1) scientific knowl edge that (2)

will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology unde rlying the testimony is scientifically valid and of whether that

___________________________________________________ ______________

11. Fed. R. Evid. 104(a) provides: "Preliminary que stions concerning the qualification of a person to be a witness, the exis tence of a privilege,

or the admissibility of evidence shall be determined b y the court, subject to the provisions of subsection (b)[pertaining to cond itional admissions].

9reasoning or methodology properly can be app lied to

the facts in issue.

Id. at 592-93. The proponent must satisfy this burd en "by a preponderance of proof." Id. at 593 n.10.

Although "[m]any factors will bear on the inquiry," the Court has set out some "general observations," Id. at 593, that serve as guideposts in determining if proffere d expert testimony is sufficiently relevant and reliable to be admissible.12 First, "a key question to be answered in determining whether a theory or technique is scient ific knowledge that will assist the trier of fact will b e whether it can be (and has been) tested." Id. Second, the c ourt should consider "whether the theory or technique ha s been subjected to peer review and publication." Id. Publ ication, which is an element of peer review, "is not a sine qua non of admissibility: it does not equate with reliabili ty." Id. It may, however, suggest "good science." Id. "The fac t of publication (or lack thereof) in a peer reviewed jo urnal will be a relevant, though not dispositive, consideratio n in assessing the scientific validity of a particular t echnique or methodology upon which an opinion is premised." Id. at 594. Third, "in the case of a particular scientific technique, the court ordinarily should consider the known or p otential rate of error, and the existence and maintenance of standards controlling the technique's operation." I d. Fourth, and finally, "general acceptance" can have bearing on the inquiry. Id. "Widespread acceptance can be an impor tant factor in ruling particular evidence admissible, an d a known technique which has been able to attract only minimal support with the community may properly be viewed with skepticism." Id. However,"general accep tance" is "not a necessary precondition to the admissibili ty of

scientific evidence." Id. at 597. The Court also em phasized that the "inquiry envisioned by Rule 702 is . . . a flexible

___________________________________________________ ______________

12. Obviously, evidence must first be relevant to b e admissible. Relevant evidence is evidence that helps "the trier of fact to understand the

evidence or to determine a fact in issue." Id. at 5 91. This consideration

of relevance has been described as one of "fit" or "helpfulness." It requires "a valid scientific connection to the pert inent inquiry as a precondition to admissibility." Daubert, at 591-92.

10one," and noted that the "focus . . . must be solel y on

principles and methodology, not on the conclusions they generate." Id. at 595.

Shortly after the Supreme Court decided Daubert , w e applied its teachings in In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994)("Paoli II"). There, we concluded that Rule 702 has two major requirements; "qualifications" and "reliability," and noted that an expert's "qualifications" are interpreted liberally. In disc ussing "Reliability" we listed the factors enunciated in D aubert but noted the continued vitality of our prior analysis in United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). We held

that a "district court should take into account all of the factors listed by either Daubert or Downing as well as any others that are relevant," Paoli II, at 742, in con ducting an inquiry into the reliability of proposed expert tes timony. The factors that are relevant under Daubert and Downing include: "(1) whether a method consists of a testab le hypothesis; (2) whether the method has been subject ed to peer review; (3) the known or potential rate of err or; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is ge nerally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying bas ed on the methodology; and (8) the non-judicial uses to which the method has been put." Paoli II, at 742 n. 8.

In Paoli II, we also stated that the expert's testi mony must "fit," in that it must assist the trier of fac t. Id. at 743. Admissibility thus depends in part upon "the proffe red

connection between the scientific research or test result to be presented and particular disputed factual issues in the

case." Id. This standard is not intended to be a hi gh one, nor is it to be applied in a manner that requires t he plaintiffs "to prove their case twice -- they do no t have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable." Id. at 744. This is a very important distinction. The test of admissibi lity is not whether a particular scientific opinion has the bes t

11foundation or whether it is demonstrably correct. R ather,

the test is whether the "particular opinion is base d on valid reasoning and reliable methodology." Kannankeril v. Terminix International Inc., 128 F.3d 802, 806 (3d Cir. 1997). "The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to c rossexamination." Id.

Nonetheless, "conclusions and methodology are not entirely distinct from one another." General Electr ic Co. v. Joiner, 522 U. S. 136, 146 (1997). A court "must ex amine the expert's conclusions in order to determine whet her they could reliably flow from the facts known to the exp ert and the methodology used." Heller v. Shaw Industries, I nc., 167 F.3d 146, 153 (3d Cir. 1999). "A court may conclude that there is simply too great a gap between the data an d the opinion proffered." Joiner, at 146; see also In re TMI Litigation, 193 F.3d 613, 682-683 (3d Cir. 1999), o pinion amended by 199 F.3d 158 (3d Cir.), cert. denied sub nom. General Public Utilities Corp. v. Abrams, ___ U. S. ___, 120 S. Ct. 2238 (2000) and Dolan v. General Public Util ities Corp., 120 S. Ct. 2238 (2000).

Although Daubert was decided in the context of scie ntific knowledge (whether evidence established a connectio n between the defendant's drug and birth defects), Da ubert

has since been extended to the kind of "technical o r other specialized knowledge," at issue here. See Kumho Ti re Co., Ltd. v. Carmichael, 526 U. S. 137, 141 (1999) ("We conclude that Daubert's general holding--setting forth the t rial judge's general `gatekeeping' obligation--applies n ot only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specializ ed' knowledge."). The expert in Kumho Tire was an engin eer and the Court there framed the issue before it as"h ow Daubert applies to the testimony of engineers and o ther experts who are not scientists." Id. at 141.

We examine the specific testimony that was excluded here against this background. "We afford a district court's application and interpretation of Rule 702 plenary review, Paoli II at 749, but we review the court's decision to admit or reject testimony under an abuse of discretion st andard. Joiner, at 143. An abuse of discretion arises when the

12district court's decision "rests upon a clearly err oneous

finding of fact, an errant conclusion of law or an improper application of law to fact." Hanover Potato Product s, Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993). An abuse of discretion can also occur "when no reasonable perso n would adopt the district court's view." Id. We wil l not

interfere with the district court's exercise of dis cretion

"unless there is a definite and firm conviction tha t the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the releva nt

factors." Id.

IV. THE CHALLENGED EXPERT TESTIMONY.

A. John N. Noettl.

Noettl, the accident reconstruction/design engineer , was to testify that the truck was defectively designed. 13 Noettl's proffered testimony is contained in a preliminary r eport dated June 16, 1997; an amended report dated Decemb er 4,1997; an affidavit dated September 23, 1998; and two depositions.

In his preliminary report, Noettl opined that the t ruck Oddi was driving

rode up on the guard rail because of the fai lure of the left side of the front bumper. . . . Had the bumper not significantly deformed back and inward the v ehicle would have been deflected by the guard rail.

It is also my opinion that the floor board a llowed intrusion by the guard rail and possibly the concrete barrier into the occupant compartment in the area near the brake pedal and where the driver's feet and legs would be located. This intrusion was a direct cause of the injuries to Mr. Oddi.

Had the bumper and the floor board been prop erly structurally designed the vehicle would not have gone over the guard rail and the occupant compart ment

___________________________________________________ ______________

13. Ford and Grumman do not challenge his qualifica tions as an expert.

13would not have been intruded by the guard ra il and

concrete barrier.

App. at 104-105.

After he reviewed the deposition of defense expert Donald Edelen, Noettl submitted an amended report, dated December 4, 1997. In it he stated:

It is my opinion that [Ford] should have war ned [Grumman] of the fact that the front bumper on their chassis is for decorative trim only and will not offer protection to the body and occupant in a col lision. As a result of the design of the chassis and bu mper, the front wheels of the vehicle become exposed i n foreseeable accident situations. Ford should have specifically warned that the bumper was extr emely weak due to the fact that it had no backing plate or

brackets for reinforcement and because it ha d holes in the bumper placed immediately adjacent to th e outside where the bumper mounted to the chassis.

* * *

Neither Ford nor Grumman conducted any testi ng that involved the vehicle impacting with guardrai ls. Neither Ford nor Grumman incorporated any design(s) into the chassis or body of the vehicle that would pr event or reduce the likelihood of the vehicle going o ver a guardrail in the event of an impact with a g uardrail. Due to the vehicle's height, weight, and des ign the vehicle as a propensity to ramp up onto the guardrail

in foreseeable collision situations.14 . . . This design

___________________________________________________ ______________

14. This sentence could be read as advancing a new theory of design defect -- a "propensity to ramp" theory - because o f the height, weight and design of the truck. That is, it could be taken as a theory separate and apart from Noettl's defective front bumper andf loor board theories. However, during his second deposition, Noettl clear ly stated that he was not advancing any such separate theory. He testifie d:

Q: Alright. "Has a propensity to ramp." When you say that, you are just telling me that this is a bigger truck. And as a bigger truck,

you believe that it has more of a propensity to ramp than smaller

vehicles?

14defect caused or contributed to the cause of the

accident and to Mr. Oddi's injuries.

App. at 100-01.

In response to summary judgment motions, in which

Ford and Grumman noted certain deficiencies in Noet tl's submissions, Noettl prepared an affidavit which Odd i's counsel attached to Oddi's response to the summary judgment motions. That affidavit is dated September 23, 1998, and reads, in relevant part:

1. Given the basic design of this vehicle, t he following is a description of alternative designs that in my opinion, would have (1) prevented the Oddi v ehicle from ramping the guard rail and (2) prevente d the intrusion which occurred of structural compo nents into the occupant compartment.

A. A reinforced bumper. The bumper on the su bject

vehicle had a measured 3.5 X 6.5 inches hole s at critical stress points next to the frame rai ls to which the bumper is attached. The holes were desig ned and manufactured by the bumper manufacturer. The bumper should have been reinforced at these points by eliminating the holes and/or welding inch to inch steel reinforcement wedges between the frame rails and the upper and lower edges of the back side of th e bumper.

B. Steel brackets should have been welded to the . . . back side of the upper and lower edges of th e back of the bumper.

___________________________________________________ ______________

A: That is correct.

Q: That is all there is to it?

A: That is correct.

Q: And is that a defect?

A: No. That is not in and of itself a defect . The defects are the things we discussed. [i.e., the bumper and floor bo ards, discussed in a prior deposition].

Supp. App. at 144a (emphasis added).

15C. The bending and tensile properties and or metal

thickness of the bumper should have been inc reased in

addition to A or B as described above.

D. Various bumper configurations such as tub ular or cylinder designs should have been manufactur ed and tested in addition to A, B, and C above. The se bumper configurations are stronger than flat bumper s with

similar metal characteristics.

E. The occupant compartment should be reinfo rced by increasing the bending and tensile proper ties and metal thickness (by .125 inch increments) in the area of the floorboard and fire wall and\or by we lding or forming ribbing to the metal in this area. S afety factors of fifty or hundred percent are common in pr oducts.

2. I have observed bracket and wedge bumper

reinforcements on similar vehicles. As to me tal thickness -- the steering components on the subject vehicle were protected by a measured .35 inc h (approximately) thick steel enclosure while the bumper on this vehicle was designed to be .208 inch thick-- a difference of approximately .142 inch.

3. Guard rails of this type are common in ro ad way design and vehicle encounters of the type th at happened with the Oddi vehicle should be exp ected by

manufacturers.

4. The design changes I have described were capable of being incorporated into the design and ma nufacture of this truck in 1976 using basic engineerin g design and manufacturing techniques.

5. The design changes I have described would not
interfere with the function or intended use of the truck.

6. In my opinion the above design changes wo uld have greatly increased bumper strength and o ccupant compartment protection with very little tota l incremental vehicle manufacturing cost.

7. It is my opinion that if the design chang es described above were incorporated into the manufacturing process of the Oddi vehicle it would not

16have ramped on to the guard rail and would n ot have

experiences sudden deceleration from strikin g the bridge abutment. This would have prevented t he intrusions into the occupant compartment and the significant injury which Mr. Oddi sustained.

App. at 123-24.

In one of his depositions, Noettl testified that he based the opinions contained in his June 16, 1997 prelimi nary report in part on a review of accident reports, pho tographs, witnesses' statements, Oddi's medical records, and Oddi's deposition testimony; and in part on his own [Noett l's] "experience," "academic training," and"research tha t [he does] almost on a continuous basis, reviewing techn ical literature." App. at 138-139. However, Noettl was u nable to identify any particular literature that he relied u pon to form any of the opinions contained in his preliminary re port. Id.

Noettl testified that he did view films of crash te sts in forming his opinions, Id. and he insisted that the alternative designs he suggested could be found in" any machine design book." Id. at 48-49. Noettl did list a number of accepted authorities and textbooks in a document Oddi's counsel refers to as an "offer of p roof." Id.

at 201.

Ford and Grumman point to specific portions of Noet tl's depositions which they claim plainly demonstrate th at Noettl's proffered expert testimony does not meet D aubert standards. Noettl opined that the front bumper was

defective because it "bent back" when it struck the guardrail. He explained this was a defect because"i t was designed with a large lever arm on the vehicle, out from the frame rail. It had holes in it for towing, which, i n my opinion, would greatly weaken the structure, especi ally with that large lever arm on it which would allow it to be bent back." App. at 45. Noettl claimed that the bumper s hould have been designed "with either bracketry that woul d go from the frame rail out to the center part of that part of the bumper, or what [he referred to] as a backing wedge ." Id. at 47. According to Noettl, the "backing wedge""would be like
a V[ ]." Id.

However, when Noettl was asked to elaborate upon hi s belief that the bumper was defectively designed bec ause it

17bent backward upon striking the guardrail the follo wing

exchange occurred:

Q: Now, have you determined what force was i nflicted on the guardrail at the time of initial impa ct with the

truck?

A: No, I haven't. No.

Q: Have you determined what force the truck inflicted on the bridge abutment and the rail on top o f the bridge abutment when it made contact with th at?

A: No, the reason for answering both those q uestions, you would have a range of variables, also, b ut guardrails are designed to absorb energy and deflect

vehicles. You would have to make an awful lo t of assumptions.

Q: Have you determined or measured the stren gth or rigidity of the guardrail?

A: No.

Q: You haven't ascertained how much force it could hold, is that correct?

A: That's correct.

App. at 43-44. Later in the deposition, Noettl test ified as

follows:

Q: Do you know how much force it took to ben d that bumper to the point where it's bent?

A: No, I don't.

Q: Do you know how much force that bumper wa s capable of sustaining without bending? Have you determined that?

A: I haven't determined that, right.

Id. at 46-47.

When Noettl was questioned about his proposed desig ns for the bumper, and design changes that would have been necessary to remedy the suggested defect, he offere d several possibilities, but he conceded that he had not atte mpted to test or substantiate the modifications he was sugge sting.

18Q: What type of metal should the wedge be

constructed from?

A: It could be the same as the bumper, if yo u wanted to, but you just turn it on end. You could h ave many, many choices on that.

Q: What if you used a brace? What type of me tal

should that brace be constructed from?

A: Again, you could use the same as the bump er. Again you would have a lot of choices on tha t. The bracketry would probably not be as strong as the wedge. Probably not. Test it and maybe you w ould achieve a strength that would far exceed any thing you could expect.

Q: What would be the tensile strength or the gauge of the metal have to be on both of those option s?

A: The way you go through is look up in book s and you say, "Here. We got some metal here and l et's try this." Certain gauge, certain strength, some thing that is readily available. It's not a big thing, is what I'm trying to say. You certainly would not cut h oles in it right at one of the most critical points of where you major bending force is going to occur, which is at your railing.

Q: So this would be something relatively sim ple to look up in a book, and you could determine f rom the computations in some engineering book what y ou should be using. What would the name of the book be?

A: Any machine design book.

Q: Is that a particular book or is that a ty pe of a book, machine design book?

A: That's a type of book.

Q: Could you give me an authority?

A: There are machine design books that give you all types of metal gauges. If you go through the design process for any of these things on a bumper, frame rails, exactly what they do -- they don't si t down. They don't do finite element analysis. They look up in books

19what metal thickness, what's our yield stren gth, what's

our tensile properties of this metal, bang, bang, bang. We're going to use this.

Q: Have you done that?

A: No. I haven't done that, no.

Q: So you don't know what the thickness woul d have to be, what the metal gauge, what the tensil e strength

--

A: Right.

Q: -- what type of material you would need t o use; is

that correct?

A: I told you I would use -- probably start with the same material that you have in the bumper. T ake a piece of metal, turn it on its edge, put it in back of it, weld it on there for a test, see what streng th you do gain out of this as far as impact, as far as bending moments and as far as shearing. You sure hop e it

won't shear off. You would do that. You woul d say,"I want it a little bit stronger." The easiest way, by far, is to thicken the metal. That's all you have to do. Get a lower gauge metal and put that on there and try it again.

Q: How thick would the metal have to have be en to have not deformed in this impact?

A: I would say, in my opinion, half inch to an inch and a half range would be more than adequate to withstand the force on edge. That's the thic kness, not

the width.

Q: What would the width be?

A: I don't know. Three inches or so, four in ches.

B. Leon Kazarian.

Kazarian, the biomechanical engineering consultant, was retained to explain how Oddi received his injuries. Kazarian authored a preliminary report, dated June 18, 1997, in which he opined: "On impact, the end of the bridge

20pierced and penetrated the driver's occupant compar tment

impaling, cutting and crushing Mr. Oddi's extremiti es." The report noted that Oddi "was found outside the vehic le on the grassy slope next to the bridge." App. at 113. Though Oddi had been thrown from the truck, Kazarian concl uded that Oddi had "sustained his primary injuries at th e time he was in the driver's seated position," and that h is injuries occurred "as a result of the bridge piercing, penet rating and crushing his extremities while he was in the driver 's compartment." Id.

The following exchange occurred during Kazarian's deposition:

Q: Have you considered what would have happe ned to Mr. Oddi in the event that there was no comp romise to

the floor of the vehicle and he still had th e same accident? Are you able to tell us what would have happened to him physically?

A: No, not as I sit here.

Q: It could have been worse, it could have b een better?

A: I don't know.

******************************

Q: And you hold no opinion on whether or not the vehicle mounted the guardrail, correct?

A: That's correct.

Q: Given that, have you considered what inju ries, if any, Mr. Oddi would have sustained if the ve hicle didn't mount the guardrail or ramp the guard rail?

A: No.

Q: So I take it that since you haven't consi dered that aspect, that you hold no opinions as to what injuries, if any, Mr. Oddi would have sustained had th e vehicle not mounted or ramped the guard rail.

A: Yes. As I sit here, I haven't thought abo ut that.

Grumman's Br. at 32. Therefore, although Kazarian testified about how Oddi received his injuries, he was

21unable to offer an opinion on the key aspect of Odd i's

crashworthiness claim, i.e., whether Oddi's injurie s were exacerbated by the design of the bread truck.

V. DISCUSSION.

Oddi argues that the district court erred in denyin g his motion for an in limine hearing on the Daubert chal lenge, and in granting summary judgment. We will address e ach argument separately.

A. Necessity for an in limine Hearing under Daubert

.

Oddi bases his contention that a hearing was requir ed upon Kumho Tire (decided just one week before the d istrict court granted summary judgment here), and our holdi ng in

Padillas.15 We decided Padillas one month after the district court granted summary judgment.

Oddi submits that his case had been pending for fou r years before the Supreme Court decided Kumho Tire, and

that Kumho Tire was not decided until after each of the following occurred in his case: (1) he filed his ex perts' reports; (2) his experts had been deposed; (3) defe ndants had filed their summary judgment motions; and (4) h e had filed his papers in opposition to the summary judgm ent motions. Oddi's Br. at 15. Moreover, he claims that from

the time he started his lawsuit until Kumho Tire w as decided, the law did not assess nonscientific exper t testimony under Daubert. Id. Nonetheless, the distr ict court expressly subjected Noettl's testimony to Daubert s crutiny under Kumho Tire. See 3.31.99 Dist. Ct. Op. at 3, 7

.

Thus, though not clearly articulated, Oddi is argui ng that Kumho Tire worked a substantial change in the law a nd that the district court blind-sided him by subjecti ng his experts' testimony to a Daubert analysis. He conten ds that the district court's failure to hold an evidentiary hearing "precluded [him] from ever having the opportunity t o present [his] expert testimony in accordance with t he

Kumho decision." Oddi's Br. at 15.

___________________________________________________ ______________

15. Although he now makes this argument to us, he n ever asked the district court to conduct such a hearing.

22Oddi's claim that the scope of Daubert was unsettle d

until Kumho Tire is not without force. See In re Un isys Savings Plan Litigation, 173 F.3d 145, 162 n.2 (3d Cir. 1999) (Becker, J., dissenting). Prior to Kumho Tire , there was substantial uncertainty about whether Daubert a pplied to nonscientific expert testimony. Contrast Surace v. Caterpillar, Inc., 111 F.3d 1039, 1055-56 (3d Cir. 1997); United States v. Valasquez, 64 F.3d 844, 847-50 (3d Cir. 1995); and Habecker III, at 289-90 (3d Cir. 1994), with Lauria v. National Railroad Passenger Corp., 145 F. 3d 593, 599 n.7 (3d Cir. 1998).16 In Lauria we not only con cluded that Daubert scrutiny did not apply to the proffere d testimony of an engineer, but also that a nonscient ific expert's testimony was admissible under Rule 702 ba sed upon the expert's experience and knowledge. Id. at 599.

Nevertheless, we do not think that Oddi's reliance on Kumho Tire establishes that the district court erre d in granting summary judgment here without an in limine hearing. Oddi was surely alerted to this problem wh en Ford raised a Daubert challenge in its summary judgment motion. In his brief in opposition to the defendant s' summary judgment motions, Oddi specifically discuss ed Daubert, and argued that his experts' testimony sat isfied Daubert. App. at 70-94. Despite the uncertain scope of Daubert, he never argued that Daubert did not apply to nonscientific expert testimony. Moreover, Oddi now reads

far too much into our decision in Padillas.

It is not clear whether Oddi is arguing that Padill as always requires a hearing or that the procedural po sture of

his case is so like Padillas that the district cour t abused its discretion by not holding an in limine hearing. In Padillas, we focused upon the process by which the district c ourt there determined that proffered expert testimony wa s inadmissible under Daubert. 186 F.3d at 417 ("We do not reach the question whether the district court abuse d its discretion in holding the [expert's] Report inadmis sible under Rule 702. Our concern is with the process by which the court arrived at its ruling.").

___________________________________________________ ______________

16. In Lauria we specifically noted that the Circui t Courts of Appeals were split over whether Daubert applied to nonscien tific expert testimony. Id. at 599 n.7.

23Padillas had been injured while hosing down a chick en

cutting machine manufactured by Stork-Gamco. The cutting machine had an exposed cutting blade. He su ed Stork-Gamco alleging strict products liability, neg ligence, breach of warranty and failure to warn. To establis h liability, Padillas retained an engineering expert (Lambert) who opined in a written report that Stork-Gamco's f ailure to provide a guard that would prevent the snagging of the hose during wash-down and its failure to protect wo rkers from the cutting blade resulted in a defective mach ine that caused his injury. Id. at 416.

Stork-Gamco filed a motion for summary judgment, arguing that Lambert's report did not meet the Daub ert standards for admissibility. The district court agr eed, excluded the report, and then granted summary judgm ent to Stork-Gamco. In reversing and remanding for an i n limine hearing on Lambert's proffered testimony we criticized the process used by the district court. We noted at the outset that we have "long stressed the impor tance of in limine hearings under Rule 104(a) in making the reliability determination under Rule 702 and Dauber t." Id. at 417 (internal quotations and citations omitted). We also reiterated the importance of an in limine hearing i n ruling upon Daubert challenges even in the absence of a re quest for such a hearing. We stated that the district cou rt has an "independent responsibility for the proper manageme nt of complex litigation" and emphasized that the plainti ff "need[s] an opportunity to be heard" on the critica l issues of scientific reliability and validity. Id. The op portunity to be heard is important because it allows a plaintiff"a chance to have his or her expert demonstrate and explain the` good grounds' upon which the expert evidence rests." Id. at 418.

However, our analysis in Padillas cannot be divorce d from the record that was before us. In commenting u pon the district court's Daubert analysis of Lambert's report, we noted that it "does not establish that Lambert may not have `good grounds' for his opinions, but rather, that t hey are insufficiently explained and the reasons and founda tions for them inadequately and perhaps confusingly expli cated." Id. Lambert's report was quite conclusory and did n ot adequately explain the basis for his opinion, or th e

24methodology employed in reaching his conclusions. I t was

in that context that we held that if the district c ourt "was concerned with the factual dimensions of [Lambert's ]

evidence . . . it should have had an in limine hea ring to assess the admissibility of the report giving the p laintiff an opportunity to respond to the court's concerns." Id . (citation and internal quotations omitted). We stated, "when the ruling on admissibility turns on factual issues, . .., at least in the summary judgment context, failure to hold[an in limine] hearing may be an abuse of discretion." Id. (emphasis added).

Oddi attempts to equate the district court's reject ion of Noettl's testimony here with the rejection of Lambe rt's testimony in Padillas. He submits that the district court found the basis of Noettl's conclusions "confusing. " Oddi's Br. at 13. Consequently, he argues, the district co urt should have conducted an evidentiary hearing as we

ordered in Padillas. Id.

Initially, we suspect that Oddi is being disingenuo us in stating that the district court found that the basi s of Noettl's conclusions was "confusing." The district court's reference to "confusion" had nothing to do with its decision to exclude Noettl's testimony. Rather, the "confusi on"

stemmed from a statement Noettl made in his Decembe r 4, 1997 amended report. He there referred to an allege d defect based upon the height, weight and design of the tru ck. He said those factors created a propensity to ramp. In his motion for reconsideration, Oddi claimed that he wa s entitled to reconsideration because the district co urt "disregarded his defect claim regarding the vehicle 's `propensity to ramp' " because of the size of the v ehicle. 9/2/99 Dist. Ct. Op. at 9-10. The district court's "confusion" was nothing more than a reference to th e fact

that neither the court nor the defendants could hav e interpreted Noettl's testimony about the truck's"pr opensity to ramp" as advancing an additional design defect a part from the defective bumper and flooring. To alleviat e its "confusion," the district court reviewed Noettl's d eposition testimony on that issue and quite correctly conclud ed that Noettl was not raising an alternative or additional design defect theory. 9/2/99 Op. at 13. See n.15, supra. T hus, the

25district court did not disregard any of Noettl's th eories and

was not confused about the basis of Noettl's opinio ns.

More to the point however, Oddi's attempt to equate his circumstances with those in Padillas ignores the re cord here. As noted above, the record in Padillas was sc ant, and the district court therefore had no way of determin ing how

Lambert had arrived at his conclusions about the ch icken cutting machine. Accordingly, we held that the cour t had an independent obligation to reach a decision upon a record that had been adequately developed to allow for a meaningful evidentiary determination. We based that holding upon two separate considerations. "First,. . . the court has an independent responsibility for the pro per management of complex litigation. Second, because p laintiff

could not have known in advance the direction the d istrict court's opinion might take and thus needed an oppor tunity to be heard on the critical issues before having hi s[/her] case dismissed." Id. at 417 (citations omitted).

Here, however, the evidentiary record pertaining to Oddi's expert was far from scant. As noted, it consisted o f: (1) a preliminary report; (2) an amended report, prepared after Noettl reviewed the deposition testimony of a defen se expert; (3) an affidavit specifically prepared to m eet the defendants' Daubert challenge contained in their su mmary judgment motions; and (4) Noettl's two depositions. The district court therefore apparently saw no need to conduct a hearing before ruling on the Daubert challenges. This is consistent with Padillas and perfectly appropriate under

Kumho Tire.

In Kumho Tire the expert's proffered testimony was taken from deposition testimony. 526 U. S. at 142 ("The p laintiffs rested their case in significant part upon depositi on testimony provided by an expert in tire failure ana lysis, . . . , who intended to testify in support of their conclusion."). In the district court, the defendant s requested an in limine hearing to challenge the pla intiff 's expert's proffered testimony. However, the district court refused that request, finding that two depositions submitted to it (one from the case before it and on e from an unrelated case involving similar issues) were suffi cient to allow an inquiry under Daubert. See Carmichael v. S anyang

26Tires, Inc., 923 F. Supp. 1514, 1518 (S. C. Ala. 19 96). In

approving the process the district court used to co nduct its Daubert inquiry the Court wrote:

The trial court must have the same kind of l atitude in deciding how to test an expert's reliability , and to decide whether or when special briefing or o ther proceedings are needed to investigate reliab ility, as it enjoys when it decides whether or not that e xpert's relevant testimony is reliable. Our opinion in Joiner makes clear that a court of appeals is to ap ply an

abuse-of-discretion standard when it reviews a trial court's decision to admit or exclude expert testimony. That standard applies as much to the trial c ourt's decision about how to determine reliability as to its

ultimate conclusions.

526 U. S. at 152 (citations and internal quotations omitted)(emphasis added).

The same situation obtains here. Although Oddi strenuously claims that he was entitled to an in li mine hearing, he does not even begin to suggest how such a hearing would have advanced his position, and we ca n not begin to imagine that it would have. He does not cl aim that he has any new or additional information to present , and

he does not claim that the factual record before th e district court was somehow incomplete insofar as Noettl's testimony is concerned.17 Rather, he merely insists that he is entitled to a hearing under Padillas. However, " Padillas certainly does not establish that a District Court must provide a plaintiff with an open-ended and never-en ding opportunity to meet a Daubert challenge until plain tiff `gets it right.' " In re TMI Litigation, 199 F.3d at 159. Yet, that is where Oddi's argument would take us.

Moreover, Oddi's reliance upon a denial of an in li mine hearing also reflects a basic misperception about t he nature of the hearing the court might have conducted even if it had afforded Oddi such a hearing. In Downing, we

___________________________________________________ ______________

17. We do not suggest that the district court would have abused its discretion in denying an in limine hearing on this record even if Oddi had

made these claims.

27reiterated that trial courts retain significant dis cretion to

determine in each instance "the procedure [it] shou ld follow in making preliminary determinations regarding admissibility of evidence." 753 F.2d at 1241. We sa id that "we will not prescribe any mandatory procedures tha t district courts must follow in every case involving proffers of scientific evidence," and then noted "[a] few ge neral observations . . ." as to how the preliminary evide ntiary issues might be decided under Rule 702. We stated:

It would appear that the most efficient proc edure that the district court can use in making the rel iability determination is an in limine hearing. Such a hearing need not unduly burden the trial courts; in many cases, it will be only a brief foundational hearing either

before trial or at trial but out of the hear ing of the jury. In the course of the in limine proceeding, t he trial court may consider, inter alia, offers of proof, a ffidavits, stipulations, or learned treatises, in addit ion to testimonial or other documentary evidence (a nd, of course, legal argument).

Id. Here, the district court already had before it the depositions and affidavits of the plaintiff 's expe rts. Nothing more was required.

This conclusion is not inconsistent with our recent holding in Elcock v. Kmart Corp., __ F.3d __, 2000 WL 1486489 (3d Cir. Oct. 10, 2000). There, we reversed an award of damages and remanded for an in limine hea ring as to the admissibility of the testimony of plaintiff 's economic loss expert. The witness in question, Dr. Chester Copemann, testified as an expert in vocational rehabilitation, and his testimony "substantially in formed the large award for loss of future earnings and ear ning capacity." Id. at * 1. We reversed based upon our

conclusion that "there should have been a Daubert h earing prior to the receipt of Copemann's testimony. . . . " Id. The defendant there had "repeatedly requested that the District Court conduct a Daubert hearing regarding Copemann' s methods as a vocational rehabilitationist." Id. at *7. The case was litigated before the Supreme Court's holdi ng in Kumho Tire, and the district court did not view the admissibility of the testimony of plaintiff 's nons cientific

28expert as a Daubert issue. Id. However, Elcock, lik e Padillas,

is a situation where the "gatekeeper" could not det ermine what methodology the expert used, and the reliabili ty of the expert's conclusion could therefore not be establis hed. In Elcock, we stated:

[A] review of Copemann's vocational rehabili tation testimony demonstrates the significant relia bility questions raised by his methodology and comp els the conclusion that a Daubert hearing would have permitted a fuller assessment of Copemann's analytical processes and thus was a necessary predicate for a proper determination as to the reliability o f Copemann's methods.

Id. at *8. In other words, a hearing was necessary to determine how the expert reached his opinion. Id . at *9 ("An expert's opinion is reliable if it is based on the methods and procedures of science rather than on subjective bel ief or unsupported speculation; the expert must have good grounds for his or her belief.")(citations and inte rnal quotations omitted). However, "because Copemann nev er explained his method in rigorous detail, it [was] n early impossible for [the defendant's] experts to repeat Copemann's apparently subjective methods. . . " Id. at *11.18 However, here, Noettl did explain how he arrived at his opinion, and he did it in as much detail as possibl e given the nature of his "inquiry."

Accordingly, we reject Oddi's assertion that he was entitled to an in limine hearing before the court c ould reject his expert's testimony. Our conclusion does not, ho wever, end our inquiry. We must still determine whether th e district court abused its discretion in ruling that Oddi's proffered expert testimony was inadmissible under R ule

702 and Daubert.19

___________________________________________________ ______________

18. In Elcock, we also concluded that the trial cou rt had erred in allowing the plaintiff 's economist to testify at trial beca use his testimony was

not "accompanied by a sufficient factual foundation[to be] submitted to the jury." 2000 WL 1486489 at *17.

19. Two small matters also remain that pertain to t his portion of Oddi's argument. First, Oddi argues that the district cour t failed to rule on his

29B. The District Court's Exercise of Discretion.

Because "the evidentiary requirement of reliability is lower than the merits standard of correctness," the standard for determining scientific reliability"is not that high." Paoli II, at 744-45. The test is not "[w]het her the . . . expert might have done a better job." Kannankeril, 128 F.3d at 809. Nonetheless, even though the Federal Rules of Evidence "embody a strong and undeniable preference for admitting any evidence which has the potential for assisting

___________________________________________________ ______________

motion to strike Grumman's reply brief filed after Oddi filed his response to the original summary judgment motions. As noted earlier, Grumman's initial summary judgment motion did not raise a Dau bert challenge to Oddi's experts' testimony. It was only after Oddi r esponded to Ford's and Grumman's summary judgment motions that Grumman ass erted a Daubert challenge via a reply brief. Oddi thenfiled a motion to strike, presumably asserting that the reply brief was filed without leave of

court. However, the district court did not rule on Oddi's motion to strike, and Oddi claims that he was prejudiced by the district court's failure to strike Grumman's reply brief. The prejudice lies in the fact that, according to Oddi, Ford's Daubert challenge was onl y to Noettl's bumper testimony and not the flooring testimony, while Gru mman's was to both the bumper and flooring. Thus, Oddi argues that he was not able to respond the newly asserted challenged to Noettl'sfl ooring testimony. However, Oddi would be hard pressed to demonstrate prejudice because Ford's summary judgment motion mounted a Daubert c hallenge to Noettl's testimony with regard to the bumper claim as well as the flooring claim. Thus, even if it is assumed for argument's s ake that the district court improperly failed to strike Grumman's reply b rief, Oddi suffered no harm because Noettl's testimony as to both the bump er and the floor was attacked at the outset by Ford. Furthermore, Od di does not cite any authority for his contention that it was improper f or Grumman to file a reply brief or any authority supporting his content ion that Grumman's reply brief should have been stricken. Consequently , Oddi's prejudice argument is without merit.

Second, Oddi argues that the district court did not comply with its local court rule 7.1F which requires oral argument for dispositive motions "unless expressly precluded by the court." However, this argument is also without merit. As the district cou rt expressly noted, it is the custom and practice of the United States Dis trict Court for the Western District of Pennsylvania to preclude oral a rgument on dispositive motions. The ability of the district co urts to preclude argument is expressly given to the court by the loc al rule.

30the trier of fact," Kannankeril, at 806, we do not believe that

the district court abused its discretion in rejecti ng Oddi's expert testimony here.

As we noted earlier, the factors to be considered i n a Daubert admissibility inquiry include:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to p eer review; (3) the known or potential rate of e rror; (4) the

existence and maintenance of standards contr olling the technique's operation; (5) whether the metho d is generally accepted; (6) the relationship of the technique

to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-ju dicial uses to which the method has been put.

Paoli II, at 742 n. 8. While Noettl clearly meets D aubert's qualifications requirement, his expert opinion does not satisfy any of the other considerations that determ ine admissibility.

Noettl posited two hypotheses. His first hypothesis was that the front bumper's design should have included either bracketry or a brace system that would have increas ed the bumper's rigidity, prevented the truck from ramping , and deflected the vehicle back onto the roadway after i mpact with the guard rail. His second hypothesis was that thicker and/or ribbed metal on the flooring of the cab woul d have retained the integrity of the cab. However, Noettl quite candidly testified that he never tested either hypo thesis. Consequently, he has not satisfied the first of the Daubert factors. The Supreme Court has explicitly instructe d, "[o]rdinarily, a key question to be answered in det ermining whether a theory or technique is scientific knowled ge that

will assist the trier of fact will be whether it ca n be (and has been) tested." Daubert, at 593 (emphasis added).

Although Daubert does not require a paradigm of scientific inquiry as a condition precedent to admi tting expert testimony, it does require more than the hap hazard, intuitive inquiry that Noettl engaged in. Given Noe ttl's responses, Oddi could not establish the existence o f Noettl's

31methodology and research let alone the adequacy of it.20

This is illustrated by Noettl's attempt to explain how he

arrived at his conclusion. Noettl testified that he had

"studied" bread trucks but was not able to state if they were the same kind of truck that Oddi was driving o r even if they were produced by the same manufacturer.

Q: What type of vehicles [did you examine]?

A: Bread trucks.

Q: Whose bread trucks? Who made them?

A: They were in front of a grocery store and I walked up and looked at them. I didn't record anyth ing off of them. I seen them [i. e., bracketry or wedge supports] on them [i. e., front bumpers].

****************************

Q: You didn't make a note of what the bread truck was so you could go back and say, "Here's th e design I'm proposing and somebody is already using this."

A: I said that in my mind, and I had groceri es and I didn't have a camera and nothing else.

Q: You don't remember the name of the bread company?

A: No, I don't. It might come to me. I can't tell you,

no.

******************************

Q: You don't know whether or not those truck s would have sustained a bending of the bumper the s ame as this truck because we don't know what the fo rces are, right?

A: I would say that they have a better chanc e, but I can't tell you more than that, no. That's co rrect.

******************************

___________________________________________________ ______________

20. Methodology is defined as "body of methods, rul es, and postulates employed by a discipline: a particular procedure of set of procedures." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 747 (1990 ).

32Q: But, what you've seen, you don't know whe ther or

not that would have changed the scenario in this accident one way or the other?

A: I haven't evaluated that.

App. at 53.

Moreover, not only did Noettl fail to test either hypothesis, he never even considered the design of the guardrail or the possibility that the damage to Odd i's truck was a factor of the design of the guardrail, not th e design

of the truck.

Q: What if the guardrail was deformed and be nt back by the force of the impact so it was bent to the point where it was lower than the bumper? Could a ride-up

occur then?

A: It if was bent back further than the bump er's height.

Q: If it was bent back and, therefore, it wa s lower than the height of the bumper, could it ride up?

A: It's possible. I haven't thought of it, a nd how long. I would have to look at that. If you, your t ire is exposed to ramping --

Q: If you have the bumper and the guardrail here and the guardrail bends down to a point lower th an the bumper, the tire could ride up on it, isn't that correct?

A: That is a possibility, yes.

App. at 46.

Noettl also conceded that strengthening the bumper as he proposed could result in even greater injury bec ause the increased rigidity could transmit more force to the driver of the truck than the defendants' design.

Q: To get back to my question, would the ene rgy-- if you had a rigid bumper, on impact, the energ y of the impact and the force of the impact would be transferred to the occupants, right?

A: Some of it would, yes.

33Q: More of it would than if you had a bumper that

had give to it?

A: Right.

App. at 40-14. Noettl did not offer any testimony a s to the point on the continuum between absolute rigidity an d the rigidity of defendants' design that would achieve g reater protection than the bumper on Oddi's truck yet affo rd a practical alternative.

Noettl's explanation of the purported defect in the floor of the truck was undermined by the same laws of physic s that undermined his testimony that the bumper design was

defective.

Q: What was wrong with [the floor]?

A: It wasn't strong enough to prevent intrus ion in this type of an accident into the occupant compar tment, exposing the driver to the dangers of that i ntrusion.

Q: What should have been done?

A: The metal could have been made thicker. I t could

have been ribbed.

3/31/99 Op. at 12-3. However's Noettl's own logic c learly suggests that any such alteration may well have bee n less able to absorb impact itself, and therefore it may have simply transferred even more force to the occupant than the defendants' design did. Although it may well be that

there is an ideal thickness that would have been ab le to absorb far greater force than the defendants' desig n yet still protect the truck's occupant, Noettl was not able t o identify that point. He was asked "How thick should it have been?" He responded: "Well, the way I would do that is to thicken the metal and rib it and then do a test to see, if under these types of foreseeable accidents, it would real ly retain the integrity of the occupant compartment." 3/31/99 Op. at 12-13. However, he never did that. Id.

Not only did Noettl not test his hypotheses, he did not even attempt to calculate the force that was inflic ted on the truck by the guardrail at impact; he did not calcul ate the force of the bridge abutment on the truck; and he d id not measure the strength of the guardrail or determine how

34much force the guardrail could sustain. He did not know

how much was required to bend the bumper or penetra te the floor, or how much force the bumper or floor co uld withstand. His hypothesis about adding a "wedge" or bracket to bumper was likewise without support as h e did not determine the tensile strength or gauge of what ever metal should be incorporated into his alternative d esign. Accordingly, there was no way of knowing if his sug gested alternative would better protect the cab's occupant , or if the suggested modifications were practical.

Essentially, Noettl's expert opinion that the front bumper would have sustained the impact with the guard rail and not ramped had it been strengthened with either bra cketry or wedge supports and that the flooring in the occu pant compartment should have been thicker or ribbed is b ased on nothing more than his training and years of expe rience as an engineer. Although there may be some circumst ances where one's training and experience will provide an adequate foundation to admit an opinion and furnish the necessary reliability to allow a jury to consider i t, this is not such a case. See e.g., Lauria, at 599 (former Conra il foreman's many years of experience with railroad tr ack equipment, maintenance and safety equipment, qualif ied him as an expert to testify about Amtrak's responsi bility to inspect and maintain railroad track in a safe condi tion). Noettl's ipse dixit does not withstand Daubert's sc rutiny. An "expert's opinion must be based on the methods and procedures of science rather than on subjective bel ief or unsupported speculation." Paoli II, at 742 (citatio ns and internal quotations omitted).

Since Noettl conducted no tests and failed to attem pt to calculate any of the forces on Oddi or the truck du ring this accident, he used little, if any, methodology beyon d his own intuition. There is nothing here to submit to peer review, and it is impossible to ascertain any rate of error for Noettl's assumptions about the forces that caused O ddi's horrific injuries. Similarly, no standards control his analysis, and no "gatekeeper" can assess the relati onship of

Noettl's method to other methods known to be reliab le and the non-judicial uses to which it has been put. Cle arly, the

district court did not abuse its discretion in excl uding Noettle's proffered expert opinion testimony.

35We also note an obvious gap in Oddi's argument. As

recited earlier, Oddi retained two experts, Noettl and

Kazarian. The district court also found that Kazari an's expert opinion testimony did not satisfy Daubert . 3/31/99 Dist. Ct. Op. at 15-16. Kazarian's expert opinion w ent to the "enhanced injuries" element of the crashworthin ess claims. Unless Oddi can establish that the defendan ts' design and/or manufacture enhanced injuries he woul d not have otherwise sustained, or caused him to sustain injuries that he would not have sustained otherwise, there c an be no recovery under a theory of crashworthiness. Carrasquilla, 963 F. Supp. at 458. Consequently, ev en assuming arguendo that Oddi convinced us that Noett l's testimony was improperly excluded, his failure to a ddress the admissibility of Kazarian's testimony means tha t Oddi

has no admissible evidence to demonstrate the "enha nced injuries" elements of a crashworthiness claim. 21

C. The District Court Properly Granted Summary Judgment on the Negligent Failure to Test Cl aim.

Finally, Oddi argues that the district court erred by granting summary judgment to Ford and Grumman on hi s negligent failure to test claim. As noted, Oddi cla ims that a manufacturer has an affirmative duty to test its pr oduct to

see if it is defective. He then contends that "it i s within the comprehension of lay jurors to understand that if t he Defendants had tested this truck, they would have b een aware that, in an accident, its design would defeat the purpose of a guardrail." Oddi's Br. at 27. Accordin gly, Oddi argues that even if his expert testimony was proper ly excluded, his negligence claim still survives becau se he does not need expert testimony to establish that cl aim.

As a general principle, "[e]xpert evidence is not n ecessary . . . if all the primary facts can be accurately an d intelligibly

___________________________________________________ ______________

21. Moreover, Kazarian's testimony would not have b een as helpful as

Oddi believes even if it had been admitted. Kazaria n conceded that he had no opinion on what injuries Oddi would have suf fered had there been no compromise to the floor of the occupant com partment and had no opinion on what injuries Oddi would have sustain ed if the truck had not ramped the guard rail.

36described to the jury, and if they, as [persons] of common

understanding, are as capable of comprehending the primary facts and of drawing correct conclusions fr om them as are witnesses possessed of special or peculiar t raining of the subject under investigation." Padillas , at 415 -16 (citation omitted); see also Cipriani v. Sun Pipe L ine Co., 574 A.2d 706, 710 (Pa. Super. 1990)("However, exper t testimony is not required when the matter under consideration is simple and lack of ordinary care i s obvious and within the range of comprehension of the averag e juror.")(citations omitted). Although expert eviden ce is generally required in a products liability case whe re a defect is alleged, we have never foreclosed the pos sibility that a defective condition may be established throu gh nonexpert evidence. In Padillas we opined that since t he case was at the summary judgment stage, it was "prematur e to rule out that testimony and pictures may enable the jury to clearly see the construction of the machine and the manner of its use, rendering expert testimony unnecessary. " Padillas, at 416. Consequently, we held that it was entirely possible that Padillas' non-expert testimony may be "sufficient to submit his claim of defect to the ju ry." Id.

The truck Oddi was driving is not at all like the c hicken cutter with exposed blades in Padillas. A whirling cutting blade without a proper guard is obviously dangerous . It could reasonably be regarded by a lay juror as a de sign defect. In addition, in Padillas, plaintiff offered nonexpert testimony including, but not limited to, reports fr om defendant's own employees that referred to "Safety Problems," and a report from the defendant's engine ering manager "addressing problems with the machine . .. including `safety concerns [in that the blades were ] not well grounded.' " 186 F.3d at 415.

We do not believe that a juror could look at the fr ont bumper and the flooring of the cab of the truck Odd i was driving and reasonably conclude, not only that its design was defective, but also that testing would have dis closed

the defect and that it could have been remedied. Su ch conclusions are within the peculiar competence of e xperts. Inasmuch as Oddi's "defect expert" does not survive Daubert scrutiny, the district court properly grant ed

37summary judgment to Ford and Grumman on Oddi's

negligent failure to test claim.22

VI. CONCLUSION.

We are not unsympathetic to Oddi. He suffered horri fic and catastrophic injuries while driving the truck t hat had been designed and/or manufactured by the defendants

. That does not, of course, establish that either def endant is necessarily liable for any of those injuries or tha t Oddi's proffered proof was sufficient to prove liability o n their part. Nor does our holding suggest that every plaintiff m ust engage in such sophisticated and refined testing (i ncluding crash-testing) as to preclude a successful suit for damages for all but the wealthiest of plaintiffs or a group of plaintiffs sufficiently large to allow the economies and pract icalities of class certification. The inquiry required under Daubert ought not to become an impenetrable barrier for pla intiffs

with limited resources or restricted circumstances. As noted above, the Supreme Court reminds us that the "inqui ry envisioned by Rule 702 is . . . a flexible one." Da ubert, 509 U.S. at 595. It does not require the most elaborate or sophisticated tests or studies that can be imagined by opposing counsel. Nevertheless, here, the district court's inquiry established that Oddi's proffered expert te stimony was not admissible under Fed. R. Evid. 702, and we

conclude that the district court did not abuse its discretion in rejecting that evidence. Accordingly, we will af firm the

district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

___________________________________________________ ______________

22. Oddi claims that neither Ford nor Grumman moved for summary judgment on his negligent failure to test claim. Od di's Br. at 27. That is incorrect. Ford's and Grumman's summary judgment mo tions were directed to all of Oddi's claims, including his neg ligence claims.

38