2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-13-2000

Oddi v. Ford Motor Co.

Precedential or Non-Precedential:

Docket 99-3406

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Oddi v. Ford Motor Co." (2000). 2000 Decisions. Paper 220.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/220
Filed 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-vehicle 

accident when the truck he was driving struck a guardrail 

and a bridge abutment. Thereafter, he filed two separate 

product liability actions in state court. He sued Ford Motor 

Company, which designed and manufactured the chassis of 

the truck, and he brought a separate action against

Grumman Allied Industries, Inc. (then known as Olson 

Bodies, Inc), which designed and manufactured thefinished 

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. 

 2 
Grumman eventually moved for summary judgment based

upon their contention that Oddi could not establish a prima 

facie case because his proposed expert testimony failed to 

satisfy the requirements of Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U. S. 579 (1993). The district 

court agreed and granted summary judgment in favor of 

Ford and Grumman, and against Oddi. The district court 

subsequently denied Oddi's motion for reconsideration, 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 owned 

and maintained by Continental Baking Company. He was 

proceeding northbound at exit 14 of Interstate 79 near 

Pittsburgh, Pennsylvania, at approximately 55 to 60 miles 

an hour when the truck struck a guardrail and bridge 

abutment. Oddi's legs were crushed so badly by the force of 

the accident that they both had to be amputated. Oddi's left 

arm was also permanently injured. 

The truck was a 1976 special order Ford M-5000 

Stripped Chassis that Continental had ordered through a 

Ford dealership for use as a bread delivery truck. When the 

truck left Ford's possession and control it was comprised 

only of basic component parts such as frame rails, axles, 

engine, drive train, wheels and a front bumper. Continental 

took delivery of the Stripped Chassis and delivered it to 

Grumman for the design and manufacture of the finished 

vehicle. Grumman designed and manufactured all 

necessary aspects of the vehicle pursuant to Continental's 

specifications. This included modifications to the occupant 

compartment ("cab") and floor boards. Continental had 

used the truck as a bread delivery truck from 1976 through 

1993, and it had been driven for hundreds of thousands of 

miles in that capacity before this accident occurred.2 

The suits that Oddi filed after his accident asserted 

_________________________________________________________________ 

2. It is impossible to determine exactly how many miles it had been 

driven because the maintenance records are missing, and the odometer 

had turned over an unknown number of times. 

 3 
claims against Ford and Grumman under theories of strict 

liability, negligence, breach of warranty and failure to warn.3 

Oddi claimed Ford's defective design of the front bumper of 

the bread truck allowed the underside of the truck to ride 

up or "ramp" onto the guardrail and strike the bridge 

abutment.4 He also claimed that after the truck ramped 

onto the guardrail, the left front wheel of the truck hooked 

over the rail preventing him from steering away from the 

bridge abutment. He alleged that defects in the cab

(designed and manufactured by Grumman) had caused the 

flooring to bend upon impact with the bridge abutment 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. Similarly, 

Grumman denied that the flooring was deficient or that it 

caused any injury at all.5 

Oddi retained two experts to support his contention that 

his injuries were caused by defects in the manufacture and 

design of the truck. John N. Noettl, an engineer, was 

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 that 

all of Oddi's claims should be dismissed because Oddi's 

proposed expert testimony could not survive the threshold 

inquiry required under Daubert v. Merrell Dow 

_________________________________________________________________ 

3. Oddi also asserted negligence claims against the Commonwealth of 

Pennsylvania, Department of Transportation ("PennDOT") based upon 

the design of the guardrails and the bridge abutment. 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 complaints against PennDOT 

in the removed action in district court. However, they subsequently 

voluntarily dismissed that action. Consequently, PennDOT was no longer 

a party in the district court action and is not a party in this appeal. 

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

Oddi could not establish a prima facie case. Grumman did 

not initially make a specific challenge under Daubert. 

Instead, Grumman initially argued only that Oddi's 

evidence was either inadmissible or failed to satisfy Oddi's 

burden of proof. 

Oddi responded to the summary judgment motions by 

filing a brief in opposition, an affidavit of Noettl, and 

excerpts of Noettl's deposition testimony. Oddi did not 

request an evidentiary hearing or oral argument, nor 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 brief in 

which it argued that Oddi still could not meet his burden 

of showing that the truck was not crashworthy. Grumman 

also challenged Oddi's experts under Daubert. Oddi 

responded by filing a motion to strike Grumman's reply 

brief claiming that the district court had not granted leave 

to Grumman to file it. In the alternative, Oddi sought 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 experts 

did not meet Daubert's admissibility standards. Absent the 

testimony of those experts, Oddi could not establish a 

prima facie case of liability, and the district court therefore 

granted summary judgment in favor of Ford and Grumman. 

Oddi filed a motion for reconsideration in which his 

major argument was that the district court should have 

held a hearing on the Daubert challenge before granting 

summary judgment. However, the district court disagreed 

and on September 2, 1999, denied his motion for 

reconsideration. Oddi then sent a letter to the district 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 hearing be 

held so that he could meet the defendants' Daubert 

challenges. However, the district court disagreed and issued 

a supplemental Memorandum Opinion in which it held that 

Oddi was not entitled to an evidentiary hearing. 

 5 
This appeal followed. 

II. THEORIES OF LIABILITY. 

Although Oddi based his suits upon several different 

theories of liability, he only appeals the district court's 

grant of summary judgment on his crashworthiness and 

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 personal 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 minimize the 

injuries or even increasing the severity of the injuries 

sustained in an accident brought about by a cause other 

than the alleged defect." Habecker v. Clark Equipment Co., 

36 F.3d 278, 283 (3d Cir. 1994)("Habecker III"). "[T]he 

crashworthiness doctrine permits a plaintiff to recover for 

enhanced injuries, i. e., only for those injuries he can prove 

he would not have sustained if he had been riding in a 

crashworthy vehicle." Carrasquilla v. Mazda Motor Corp., 

963 F. Supp. 455, 458 (M. D. Pa. 1997)(citations and 

internal quotations omitted). "[I]f enhanced injuries cannot 

be shown, then no liability exists as to the manufacturer." 

Id. 

Crashworthiness is a subset of products liability law.6 

Although the Pennsylvania Supreme Court has not yet

adopted the crashworthiness doctrine for products liability 

cases,7 we have predicted that it would do so in an

appropriate case. See Habecker v. Clark Equipment Co., 942 

_________________________________________________________________ 

6. "In a typical products liability action in Pennsylvania, 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 products liability law 

applies. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 413 (3d Cir. 1999). 

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

cause of action on a theory of crashworthiness, a plaintiff 

must show: (1) the design9 of the product was defective; (2) 

an alternative, safer design that was practical existed; (3) 

what injuries, if any, the plaintiff would have received had 

the alternative design been used; and (4) the defective 

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 for 

"[f]ailing to do adequate, necessary and proper testing of 

the vehicle prior to the sale which would have revealed 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 claims that 

its elements are as set forth in 1836 Callowhill Street v. 

Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993). 

Oddi argues that under 1836 Callowhill Street he can 

recover under this theory if he establishes that: (1) the 

manufacturer has a duty to test its product; (2) the 

manufacturer breached that duty, i. e., the manufacturer 

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 assumptions 

for purposes of ruling on a motion for summary judgment. 

_________________________________________________________________ 

8. The Pennsylvania Superior Court accepted the crashworthiness 

doctrine in 1994. Kupetz v. Deere & Co., Inc. , 644 A.2d 1213 (Pa. Super. 

1994). The Pennsylvania Supreme Court has subsequently, referred to 

the crashworthiness doctrine, but has not yet officially adopted it. See 

Schroeder v. Commonwealth of Pennsylvania, Department of 

Transportation, 710 A.2d 23, 28 n.8 (Pa. 1998). 

9. We have noted that "[t]he theory of products liability is applied to 

three types of defects: design, manufacturing and marketing (warnings). 

The crashworthiness doctrine implicates the overtures 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). 

 7 
The court assumed that defendant's product was defective, 

that the defect caused the alleged damage, and that the 

defendant had a duty to adequately test the defective 

product to discover the defect. Nevertheless, the court 

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." Id. at 465. 

Consequently, although the court stated, that "[n]egligent 

failure to test is cognizable as a common law negligence 

theory," 819 F. Supp. at 464-65, that decision cannot fairly 

be said to support the proposition that a manufacturer has 

a general duty to test a product to determine if it is 

defective. 

Therefore, even if 1836 Callowhill were precedential and 

correctly stated the law of Pennsylvania, we would still be 

compelled to conclude that Oddi has cited no authority that 

establishes the principle that a manufacturer has a general 

duty to test its product. We have found no authority to 

support Oddi's contention that Pennsylvania recognizes an 

independent tort for "negligent failure to test," and Oddi 

has offered none. 

Rather, it appears that Oddi's "negligent failure to test" 

claim is, at bottom, nothing more than a routine products 

liability case based on negligence, and that the claimed 

negligence is the failure to test. Under Pennsylvania law, in 

order for an injured party to establish a cause of action 

against a manufacturer based upon the latter's breach 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 defendant 

failed to exercise due care." Dambacher v. Malis, 485 A.2d 

408, 424 (Pa. Super. 1984). Thus, Oddi must first establish 

that the vehicle was defective. 

Thus, whether we view Oddi's theory as crashworthiness 

or negligence arising from a failure to test, he must 

establish a defect in the design of the truck in order to 

recover, and he must then show that that defect caused his 

injuries. As noted above, he attempted to do this through 

the proffered expert testimony of John N. Noettl and Leon 

 8 
Kazarian, but the district court refused to admit their 

expert testimony. 

III. STANDARDS FOR ADMISSIBILITY OF 

 EXPERT TESTIMONY. 

Federal Rule of Evidence 702 states: 

 If scientific, technical, or other specialized knowledge 

 will assist the trier of fact to understand the evidence 

 or to determine a fact in issue, a witness qualified as 

 an expert by knowledge skill, experience, training, or 

 education, may testify thereto in the form of an opinion 

 or otherwise. 

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 knowledge 

requires 

 an inference or assertion . . . derived by the scientific 

 method. Proposed testimony must be supported by 

 appropriate validation -- i.e., "good grounds," based on 

 what is known. In short, the requirement that an 

 expert's testimony pertain to "scientific knowledge" 

 establishes a standard of evidentiary reliability. 

Id. at 590. Rule 702 thus "clearly contemplates some 

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] judge." Id. at 

597. 

 [T]he trial judge must determine at the outset, 

 pursuant to Rule 104(a),11 whether the expert is 

 proposing to testify to (1) scientific knowledge 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 underlying 

 the testimony is scientifically valid and of whether that 

_________________________________________________________________ 

11. Fed. R. Evid. 104(a) provides: "Preliminary questions concerning the 

qualification of a person to be a witness, the existence of a privilege, 

or 

the admissibility of evidence shall be determined by the court, subject to 

the provisions of subsection (b)[pertaining to conditional admissions]. 

 9 
 reasoning or methodology properly can be applied to 

 the facts in issue. 

Id. at 592-93. The proponent must satisfy this burden "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 proffered 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 scientific 

knowledge that will assist the trier of fact will be whether 

it can be (and has been) tested." Id. Second, the court 

should consider "whether the theory or technique has been 

subjected to peer review and publication." Id. Publication, 

which is an element of peer review, "is not a sine qua non 

of admissibility: it does not equate with reliability." Id. It 

may, however, suggest "good science." Id. "The fact of 

publication (or lack thereof) in a peer reviewed journal will 

be a relevant, though not dispositive, consideration in 

assessing the scientific validity of a particular technique 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 potential 

rate of error, and the existence and maintenance of

standards controlling the technique's operation." Id. Fourth, 

and finally, "general acceptance" can have bearing on the 

inquiry. Id. "Widespread acceptance can be an important 

factor in ruling particular evidence admissible, and a 

known technique which has been able to attract only

minimal support with the community may properly be 

viewed with skepticism." Id. However,"general acceptance" 

is "not a necessary precondition to the admissibility of 

scientific evidence." Id. at 597. The Court also emphasized 

that the "inquiry envisioned by Rule 702 is . . . a flexible 

_________________________________________________________________ 

12. Obviously, evidence must first be relevant to be admissible. Relevant 

evidence is evidence that helps "the trier of fact to understand the 

evidence or to determine a fact in issue." Id. at 591. This consideration 

of relevance has been described as one of "fit" or "helpfulness." It 

requires "a valid scientific connection to the pertinent inquiry as a 

precondition to admissibility." Daubert, at 591-92.

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

principles and methodology, not on the conclusions they 

generate." Id. at 595. 

Shortly after the Supreme Court decided Daubert , we 

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 discussing 

"Reliability" we listed the factors enunciated in Daubert 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 conducting an 

inquiry into the reliability of proposed expert testimony. The 

factors that are relevant under Daubert and Downing

include: "(1) whether a method consists of a testable 

hypothesis; (2) whether the method has been subjected to 

peer review; (3) the known or potential rate of error; (4) the 

existence and maintenance of standards controlling the 

technique's operation; (5) whether the method 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-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 testimony 

must "fit," in that it must assist the trier of fact. Id. at 743. 

Admissibility thus depends in part upon "the proffered 

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 high one, 

nor is it to be applied in a manner that requires the 

plaintiffs "to prove their case twice -- they do not 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 admissibility is not 

whether a particular scientific opinion has the best 

 11 
foundation or whether it is demonstrably correct. Rather, 

the test is whether the "particular opinion is based 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 crossexamination." Id. 

Nonetheless, "conclusions and methodology are not 

entirely distinct from one another." General Electric Co. v. 

Joiner, 522 U. S. 136, 146 (1997). A court "must examine 

the expert's conclusions in order to determine whether they 

could reliably flow from the facts known to the expert and 

the methodology used." Heller v. Shaw Industries, Inc., 167 

F.3d 146, 153 (3d Cir. 1999). "A court may conclude that 

there is simply too great a gap between the data and the 

opinion proffered." Joiner, at 146; see also In re TMI 

Litigation, 193 F.3d 613, 682-683 (3d Cir. 1999), opinion 

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 Utilities 

Corp., 120 S. Ct. 2238 (2000). 

Although Daubert was decided in the context of scientific 

knowledge (whether evidence established a connection 

between the defendant's drug and birth defects), Daubert 

has since been extended to the kind of "technical or other 

specialized knowledge," at issue here. See Kumho Tire Co., 

Ltd. v. Carmichael, 526 U. S. 137, 141 (1999) ("We conclude 

that Daubert's general holding--setting forth the trial 

judge's general `gatekeeping' obligation--applies not only to 

testimony based on `scientific' knowledge, but also to 

testimony based on `technical' and `other specialized' 

knowledge."). The expert in Kumho Tire was an engineer 

and the Court there framed the issue before it as"how 

Daubert applies to the testimony of engineers and other 

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 standard. 

Joiner, at 143. An abuse of discretion arises when the 

 12 
district court's decision "rests upon a clearly erroneous 

finding of fact, an errant conclusion of law or an improper 

application of law to fact." Hanover Potato Products, Inc. v. 

Shalala, 989 F.2d 123, 127 (3d Cir. 1993). An abuse of 

discretion can also occur "when no reasonable person 

would adopt the district court's view." Id. We will not 

interfere with the district court's exercise of discretion 

"unless there is a definite and firm conviction that the court 

below committed a clear error of judgment in the 

conclusion it reached upon a weighing of the relevant 

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 report 

dated June 16, 1997; an amended report dated December 

4,1997; an affidavit dated September 23, 1998; and two 

depositions. 

In his preliminary report, Noettl opined that the truck 

Oddi was driving 

 rode up on the guard rail because of the failure of the 

 left side of the front bumper. . . . Had the bumper not 

 significantly deformed back and inward the vehicle 

 would have been deflected by the guard rail.

 It is also my opinion that the floor board allowed 

 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 properly 

 structurally designed the vehicle would not have gone 

 over the guard rail and the occupant compartment 

_________________________________________________________________ 

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

 13 
 would not have been intruded by the guard rail 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 warned 

 [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 collision. As 

 a result of the design of the chassis and bumper, the 

 front wheels of the vehicle become exposed in 

 foreseeable accident situations. Ford should have 

 specifically warned that the bumper was extremely 

 weak due to the fact that it had no backing plate or 

 brackets for reinforcement and because it had holes in 

 the bumper placed immediately adjacent to the outside 

 where the bumper mounted to the chassis. 

* * * 

 Neither Ford nor Grumman conducted any testing that 

 involved the vehicle impacting with guardrails. Neither 

 Ford nor Grumman incorporated any design(s) into the 

 chassis or body of the vehicle that would prevent or 

 reduce the likelihood of the vehicle going over a 

 guardrail in the event of an impact with a guardrail. 

 Due to the vehicle's height, weight, and design 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 of 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 andfloor board theories. 

However, during his second deposition, Noettl clearly stated that he was 

not advancing any such separate theory. He testified: 

 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? 

 14 
 defect 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 Noettl's 

submissions, Noettl prepared an affidavit which Oddi'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, the following 

 is a description of alternative designs that in my 

 opinion, would have (1) prevented the Oddi vehicle 

 from ramping the guard rail and (2) prevented the 

 intrusion which occurred of structural components into 

 the occupant compartment. 

 A. A reinforced bumper. The bumper on the subject 

 vehicle had a measured 3.5 X 6.5 inches holes at 

 critical stress points next to the frame rails to which 

 the bumper is attached. The holes were designed 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 the bumper. 

 B. Steel brackets should have been welded to the . . . 

 back side of the upper and lower edges of the 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 boards, discussed in a 

 prior deposition]. 

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

 15 
 C. The bending and tensile properties and or metal 

 thickness of the bumper should have been increased in 

 addition to A or B as described above. 

 D. Various bumper configurations such as tubular or 

 cylinder designs should have been manufactured and 

 tested in addition to A, B, and C above. These bumper 

 configurations are stronger than flat bumpers with 

 similar metal characteristics. 

 E. The occupant compartment should be reinforced 

 by increasing the bending and tensile properties and 

 metal thickness (by .125 inch increments) in the area 

 of the floorboard and fire wall and\or by welding or 

 forming ribbing to the metal in this area. Safety factors 

 of fifty or hundred percent are common in products. 

 2. I have observed bracket and wedge bumper 

 reinforcements on similar vehicles. As to metal 

 thickness -- the steering components on the subject 

 vehicle were protected by a measured .35 inch 

 (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 road way 

 design and vehicle encounters of the type that 

 happened with the Oddi vehicle should be expected by 

 manufacturers. 

 4. The design changes I have described were capable 

 of being incorporated into the design and manufacture 

 of this truck in 1976 using basic engineering 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 would 

 have greatly increased bumper strength and occupant 

 compartment protection with very little total 

 incremental vehicle manufacturing cost. 

 7. It is my opinion that if the design changes 

 described above were incorporated into the 

 manufacturing process of the Oddi vehicle it would not 

 16 
 have ramped on to the guard rail and would not have 

 experiences sudden deceleration from striking the 

 bridge abutment. This would have prevented the 

 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 preliminary 

report in part on a review of accident reports, photographs, 

witnesses' statements, Oddi's medical records, and Oddi's 

deposition testimony; and in part on his own [Noettl's] 

"experience," "academic training," and"research that [he 

does] almost on a continuous basis, reviewing technical 

literature." App. at 138-139. However, Noettl was unable to 

identify any particular literature that he relied upon to form 

any of the opinions contained in his preliminary report. Id. 

Noettl testified that he did view films of crash tests 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 proof." Id. 

at 201. 

Ford and Grumman point to specific portions of Noettl's 

depositions which they claim plainly demonstrate that 

Noettl's proffered expert testimony does not meet Daubert 

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"it was 

designed with a large lever arm on the vehicle, out from the 

frame rail. It had holes in it for towing, which, in my 

opinion, would greatly weaken the structure, especially with 

that large lever arm on it which would allow it to be bent 

back." App. at 45. Noettl claimed that the bumper should 

have been designed "with either bracketry that would 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 his 

belief that the bumper was defectively designed because it 

 17 
bent backward upon striking the guardrail the following 

exchange occurred: 

 Q: Now, have you determined what force was inflicted 

 on the guardrail at the time of initial impact 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 of the 

 bridge abutment when it made contact with that? 

 A: No, the reason for answering both those questions, 

 you would have a range of variables, also, but 

 guardrails are designed to absorb energy and deflect 

 vehicles. You would have to make an awful lot of 

 assumptions. 

 Q: Have you determined or measured the strength 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 testified as 

follows: 

 Q: Do you know how much force it took to bend that 

 bumper to the point where it's bent? 

 A: No, I don't. 

 Q: Do you know how much force that bumper was 

 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 designs 

for the bumper, and design changes that would have been 

necessary to remedy the suggested defect, he offered several 

possibilities, but he conceded that he had not attempted to 

test or substantiate the modifications he was suggesting. 

 18 
 Q: What type of metal should the wedge be 

 constructed from? 

 A: It could be the same as the bumper, if you wanted 

 to, but you just turn it on end. You could have many, 

 many choices on that. 

 Q: What if you used a brace? What type of metal 

 should that brace be constructed from? 

 A: Again, you could use the same as the bumper. 

 Again you would have a lot of choices on that. The 

 bracketry would probably not be as strong as the 

 wedge. Probably not. Test it and maybe you would 

 achieve a strength that would far exceed anything you 

 could expect. 

 Q: What would be the tensile strength or the gauge of 

 the metal have to be on both of those options? 

 A: The way you go through is look up in books and 

 you say, "Here. We got some metal here and let's try 

 this." Certain gauge, certain strength, something that 

 is readily available. It's not a big thing, is what I'm 

 trying to say. You certainly would not cut holes 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 simple to 

 look up in a book, and you could determine from the 

 computations in some engineering book what you 

 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 type 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 sit down. They 

 don't do finite element analysis. They look up in books 

 19 
 what metal thickness, what's our yield strength, 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 would have 

 to be, what the metal gauge, what the tensile strength 

 -- 

 A: Right. 

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

 that correct? 

 A: I told you I would use -- probably start with the 

 same material that you have in the bumper. Take a 

 piece of metal, turn it on its edge, put it in back of it, 

 weld it on there for a test, see what strength you do 

 gain out of this as far as impact, as far as bending 

 moments and as far as shearing. You sure hope it 

 won't shear off. You would do that. You would 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 been 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 thickness, not 

 the width. 

 Q: What would the width be? 

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

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 

 20 
pierced and penetrated the driver's occupant compartment 

impaling, cutting and crushing Mr. Oddi's extremities." The 

report noted that Oddi "was found outside the vehicle on 

the grassy slope next to the bridge." App. at 113. Though 

Oddi had been thrown from the truck, Kazarian concluded 

that Oddi had "sustained his primary injuries at the time 

he was in the driver's seated position," and that his injuries 

occurred "as a result of the bridge piercing, penetrating 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 happened to 

 Mr. Oddi in the event that there was no compromise to 

 the floor of the vehicle and he still had the 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 been 

 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 injuries, if 

 any, Mr. Oddi would have sustained if the vehicle 

 didn't mount the guardrail or ramp the guardrail? 

 A: No. 

 Q: So I take it that since you haven't considered that 

 aspect, that you hold no opinions as to what injuries, 

 if any, Mr. Oddi would have sustained had the vehicle 

 not mounted or ramped the guard rail. 

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

Grumman's Br. at 32. Therefore, although Kazarian 

testified about how Oddi received his injuries, he was 

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

crashworthiness claim, i.e., whether Oddi's injuries were 

exacerbated by the design of the bread truck. 

V. DISCUSSION. 

Oddi argues that the district court erred in denying his 

motion for an in limine hearing on the Daubert challenge, 

and in granting summary judgment. We will address each 

argument separately. 

A. Necessity for an in limine Hearing under Daubert. 

Oddi bases his contention that a hearing was required 

upon Kumho Tire (decided just one week before the district 

court granted summary judgment here), and our holding in 

Padillas.15 We decided Padillas one month after the district 

court granted summary judgment. 

Oddi submits that his case had been pending for four 

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 experts' 

reports; (2) his experts had been deposed; (3) defendants 

had filed their summary judgment motions; and (4) he had 

filed his papers in opposition to the summary judgment 

motions. Oddi's Br. at 15. Moreover, he claims that from 

the time he started his lawsuit until Kumho Tire was 

decided, the law did not assess nonscientific expert 

testimony under Daubert. Id. Nonetheless, the district court 

expressly subjected Noettl's testimony to Daubert scrutiny 

under Kumho Tire. See 3.31.99 Dist. Ct. Op. at 3, 7. 

Thus, though not clearly articulated, Oddi is arguing that 

Kumho Tire worked a substantial change in the law and 

that the district court blind-sided him by subjecting his 

experts' testimony to a Daubert analysis. He contends that 

the district court's failure to hold an evidentiary hearing 

"precluded [him] from ever having the opportunity to 

present [his] expert testimony in accordance with the 

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

_________________________________________________________________ 

15. Although he now makes this argument to us, he never asked the 

district court to conduct such a hearing. 

 22 
Oddi's claim that the scope of Daubert was unsettled 

until Kumho Tire is not without force. See In re Unisys 

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 applied 

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 concluded 

that Daubert scrutiny did not apply to the proffered 

testimony of an engineer, but also that a nonscientific 

expert's testimony was admissible under Rule 702 based 

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 erred in 

granting summary judgment here without an in limine

hearing. Oddi was surely alerted to this problem when Ford 

raised a Daubert challenge in its summary judgment 

motion. In his brief in opposition to the defendants' 

summary judgment motions, Oddi specifically discussed 

Daubert, and argued that his experts' testimony satisfied 

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 Padillas 

always requires a hearing or that the procedural posture of 

his case is so like Padillas that the district court abused its 

discretion by not holding an in limine hearing. In Padillas, 

we focused upon the process by which the district court 

there determined that proffered expert testimony was 

inadmissible under Daubert. 186 F.3d at 417 ("We do not 

reach the question whether the district court abused its 

discretion in holding the [expert's] Report inadmissible 

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 Circuit Courts of Appeals 

were split over whether Daubert applied to nonscientific expert 

testimony. Id. at 599 n.7. 

 23 
Padillas had been injured while hosing down a chicken 

cutting machine manufactured by Stork-Gamco. The 

cutting machine had an exposed cutting blade. He sued 

Stork-Gamco alleging strict products liability, negligence, 

breach of warranty and failure to warn. To establish 

liability, Padillas retained an engineering expert (Lambert) 

who opined in a written report that Stork-Gamco's failure 

to provide a guard that would prevent the snagging of the 

hose during wash-down and its failure to protect workers 

from the cutting blade resulted in a defective machine that 

caused his injury. Id. at 416. 

Stork-Gamco filed a motion for summary judgment, 

arguing that Lambert's report did not meet the Daubert 

standards for admissibility. The district court agreed, 

excluded the report, and then granted summary judgment 

to Stork-Gamco. In reversing and remanding for an in 

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 importance of 

in limine hearings under Rule 104(a) in making the 

reliability determination under Rule 702 and Daubert." Id. 

at 417 (internal quotations and citations omitted). We also 

reiterated the importance of an in limine hearing in ruling 

upon Daubert challenges even in the absence of a request 

for such a hearing. We stated that the district court has an 

"independent responsibility for the proper management of 

complex litigation" and emphasized that the plaintiff 

"need[s] an opportunity to be heard" on the critical issues 

of scientific reliability and validity. Id. The opportunity 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 divorced 

from the record that was before us. In commenting upon 

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 they are 

insufficiently explained and the reasons and foundations 

for them inadequately and perhaps confusingly explicated." 

Id. Lambert's report was quite conclusory and did not 

adequately explain the basis for his opinion, or the 

 24 
methodology employed in reaching his conclusions. It was 

in that context that we held that if the district court "was 

concerned with the factual dimensions of [Lambert's] 

evidence . . . it should have had an in limine hearing to 

assess the admissibility of the report giving the plaintiff 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 rejection of 

Noettl's testimony here with the rejection of Lambert'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 court 

should have conducted an evidentiary hearing as we 

ordered in Padillas. Id. 

Initially, we suspect that Oddi is being disingenuous in 

stating that the district court found that the basis 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 "confusion" 

stemmed from a statement Noettl made in his December 4, 

1997 amended report. He there referred to an alleged defect 

based upon the height, weight and design of the truck. He 

said those factors created a propensity to ramp. In his 

motion for reconsideration, Oddi claimed that he was 

entitled to reconsideration because the district court 

"disregarded his defect claim regarding the vehicle's 

`propensity to ramp' " because of the size of the vehicle. 

9/2/99 Dist. Ct. Op. at 9-10. The district court's 

"confusion" was nothing more than a reference to the fact 

that neither the court nor the defendants could have 

interpreted Noettl's testimony about the truck's"propensity 

to ramp" as advancing an additional design defect apart 

from the defective bumper and flooring. To alleviate its 

"confusion," the district court reviewed Noettl's deposition 

testimony on that issue and quite correctly concluded that 

Noettl was not raising an alternative or additional design 

defect theory. 9/2/99 Op. at 13. See n.15, supra. Thus, the 

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

was not confused about the basis of Noettl's opinions. 

More to the point however, Oddi's attempt to equate his 

circumstances with those in Padillas ignores the record 

here. As noted above, the record in Padillas was scant, and 

the district court therefore had no way of determining how 

Lambert had arrived at his conclusions about the chicken 

cutting machine. Accordingly, we held that the court 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 proper 

management of complex litigation. Second, because plaintiff 

could not have known in advance the direction the district 

court's opinion might take and thus needed an opportunity 

to be heard on the critical issues before having his[/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 of: (1) a 

preliminary report; (2) an amended report, prepared after 

Noettl reviewed the deposition testimony of a defense 

expert; (3) an affidavit specifically prepared to meet the 

defendants' Daubert challenge contained in their summary 

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 plaintiffs 

rested their case in significant part upon deposition 

testimony provided by an expert in tire failure analysis, 

. . . , who intended to testify in support of their

conclusion."). In the district court, the defendants 

requested an in limine hearing to challenge the plaintiff '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 one from an 

unrelated case involving similar issues) were sufficient to 

allow an inquiry under Daubert. See Carmichael v. Sanyang 

 26 
Tires, Inc., 923 F. Supp. 1514, 1518 (S. C. Ala. 1996). In 

approving the process the district court used to conduct its 

Daubert inquiry the Court wrote: 

 The trial court must have the same kind of latitude in 

 deciding how to test an expert's reliability, and to 

 decide whether or when special briefing or other 

 proceedings are needed to investigate reliability, as it 

 enjoys when it decides whether or not that expert's 

 relevant testimony is reliable. Our opinion in Joiner 

 makes clear that a court of appeals is to apply 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 court'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 limine 

hearing, he does not even begin to suggest how such a 

hearing would have advanced his position, and we can not 

begin to imagine that it would have. He does not claim that 

he has any new or additional information to present, and 

he does not claim that the factual record before the 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-ending 

opportunity to meet a Daubert challenge until plaintiff `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 limine 

hearing also reflects a basic misperception about the 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. 

 27 
reiterated that trial courts retain significant discretion to 

determine in each instance "the procedure [it] should follow 

in making preliminary determinations regarding 

admissibility of evidence." 753 F.2d at 1241. We said that 

"we will not prescribe any mandatory procedures that 

district courts must follow in every case involving proffers 

of scientific evidence," and then noted "[a] few general 

observations . . ." as to how the preliminary evidentiary 

issues might be decided under Rule 702. We stated: 

 It would appear that the most efficient procedure that 

 the district court can use in making the reliability 

 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 hearing of the jury. 

 In the course of the in limine proceeding, the trial court 

 may consider, inter alia, offers of proof, affidavits, 

 stipulations, or learned treatises, in addition to 

 testimonial or other documentary evidence (and, of 

 course, legal argument). 

Id. Here, the district court already had before it the 

depositions and affidavits of the plaintiff 's experts. 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 hearing 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 informed 

the large award for loss of future earnings and earning 

capacity." Id. at * 1. We reversed based upon our 

conclusion that "there should have been a Daubert hearing 

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 holding in 

Kumho Tire, and the district court did not view the

admissibility of the testimony of plaintiff 's nonscientific 

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

is a situation where the "gatekeeper" could not determine 

what methodology the expert used, and the reliability of the 

expert's conclusion could therefore not be established. In 

Elcock, we stated: 

 [A] review of Copemann's vocational rehabilitation 

 testimony demonstrates the significant reliability 

 questions raised by his methodology and compels 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 of 

 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 belief or 

unsupported speculation; the expert must have good 

grounds for his or her belief.")(citations and internal 

quotations omitted). However, "because Copemann never 

explained his method in rigorous detail, it [was] nearly 

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 possible given 

the nature of his "inquiry." 

Accordingly, we reject Oddi's assertion that he was

entitled to an in limine hearing before the court could reject 

his expert's testimony. Our conclusion does not, however, 

end our inquiry. We must still determine whether the 

district court abused its discretion in ruling that Oddi's 

proffered expert testimony was inadmissible under Rule 

702 and Daubert.19 

_________________________________________________________________ 

18. In Elcock, we also concluded that the trial court had erred in 

allowing 

the plaintiff 's economist to testify at trial because 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 this portion of Oddi's 

argument. First, Oddi argues that the district court failed to rule on his 

 29 
B. 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]hether 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 Daubert challenge to 

Oddi's experts' testimony. It was only after Oddi responded to Ford's and 

Grumman's summary judgment motions that Grumman asserted 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 only to Noettl's bumper 

testimony and not the flooring testimony, while Grumman's was to both 

the bumper and flooring. Thus, Oddi argues that he was not able to 

respond the newly asserted challenged to Noettl'sflooring testimony. 

However, Oddi would be hard pressed to demonstrate prejudice because 

Ford's summary judgment motion mounted a Daubert challenge 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 sake that the district 

court improperly failed to strike Grumman's reply brief, Oddi suffered no 

harm because Noettl's testimony as to both the bumper and the floor 

was attacked at the outset by Ford. Furthermore, Oddi does not cite any 

authority for his contention that it was improper for Grumman to file a 

reply brief or any authority supporting his contention 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 court expressly noted, it 

is the custom and practice of the United States District Court for the 

Western District of Pennsylvania to preclude oral argument on 

dispositive motions. The ability of the district courts to preclude 

argument is expressly given to the court by the local rule. 

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

the district court abused its discretion in rejecting Oddi's 

expert testimony here. 

As we noted earlier, the factors to be considered in a 

Daubert admissibility inquiry include: 

 (1) whether a method consists of a testable hypothesis; 

 (2) whether the method has been subject to peer 

 review; (3) the known or potential rate of error; (4) the 

 existence and maintenance of standards controlling the 

 technique's operation; (5) whether the method 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-judicial 

 uses to which the method has been put. 

Paoli II, at 742 n. 8. While Noettl clearly meets Daubert's 

qualifications requirement, his expert opinion does not 

satisfy any of the other considerations that determine 

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 increased the 

bumper's rigidity, prevented the truck from ramping, and 

deflected the vehicle back onto the roadway after impact 

with the guard rail. His second hypothesis was that thicker 

and/or ribbed metal on the flooring of the cab would have 

retained the integrity of the cab. However, Noettl quite 

candidly testified that he never tested either hypothesis. 

Consequently, he has not satisfied the first of the Daubert 

factors. The Supreme Court has explicitly instructed, 

"[o]rdinarily, a key question to be answered in determining 

whether a theory or technique is scientific knowledge that 

will assist the trier of fact will be whether it can 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 admitting 

expert testimony, it does require more than the haphazard, 

intuitive inquiry that Noettl engaged in. Given Noettl's 

responses, Oddi could not establish the existence of Noettl's 

 31 
methodology 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 or 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 anything 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 the design 

 I'm proposing and somebody is already using this." 

 A: I said that in my mind, and I had groceries 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 trucks would 

 have sustained a bending of the bumper the same as 

 this truck because we don't know what the forces are, 

 right? 

 A: I would say that they have a better chance, but I 

 can't tell you more than that, no. That's correct. 

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

_________________________________________________________________ 

20. Methodology is defined as "body of methods, rules, and postulates 

employed by a discipline: a particular procedure of set of procedures." 

WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 747 (1990). 

 32 
 Q: But, what you've seen, you don't know whether 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 Oddi's truck 

was a factor of the design of the guardrail, not the design 

of the truck. 

 Q: What if the guardrail was deformed and bent 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 bumper's 

 height. 

 Q: If it was bent back and, therefore, it was lower 

 than the height of the bumper, could it ride up? 

 A: It's possible. I haven't thought of it, and how long. 

 I would have to look at that. If you, your tire is exposed 

 to ramping -- 

 Q: If you have the bumper and the guardrail here and 

 the guardrail bends down to a point lower than 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 because 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 energy-- if 

 you had a rigid bumper, on impact, the energy of the 

 impact and the force of the impact would be 

 transferred to the occupants, right? 

 A: Some of it would, yes. 

 33 
 Q: 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 as to the 

point on the continuum between absolute rigidity and the 

rigidity of defendants' design that would achieve greater 

protection than the bumper on Oddi's truck yet afford a 

practical alternative. 

Noettl's explanation of the purported defect in thefloor of 

the truck was undermined by the same laws of physics 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 intrusion in this 

 type of an accident into the occupant compartment, 

 exposing the driver to the dangers of that intrusion. 

 Q: What should have been done? 

 A: The metal could have been made thicker. It could 

 have been ribbed. 

3/31/99 Op. at 12-3. However's Noettl's own logic clearly 

suggests that any such alteration may well have been 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 able to 

absorb far greater force than the defendants' design yet still 

protect the truck's occupant, Noettl was not able to 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 really 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 inflicted on the 

truck by the guardrail at impact; he did not calculate the 

force of the bridge abutment on the truck; and he did not 

measure the strength of the guardrail or determine how 

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

how much was required to bend the bumper or penetrate 

the floor, or how much force the bumper or floor could 

withstand. His hypothesis about adding a "wedge" or

bracket to bumper was likewise without support as he did 

not determine the tensile strength or gauge of whatever 

metal should be incorporated into his alternative design. 

Accordingly, there was no way of knowing if his suggested 

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 bracketry 

or wedge supports and that the flooring in the occupant 

compartment should have been thicker or ribbed is based 

on nothing more than his training and years of experience 

as an engineer. Although there may be some circumstances 

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 it, this is not 

such a case. See e.g., Lauria, at 599 (former Conrail 

foreman's many years of experience with railroad track 

equipment, maintenance and safety equipment, qualified 

him as an expert to testify about Amtrak's responsibility to 

inspect and maintain railroad track in a safe condition). 

Noettl's ipse dixit does not withstand Daubert's scrutiny. An 

"expert's opinion must be based on the methods and 

procedures of science rather than on subjective belief or 

unsupported speculation." Paoli II, at 742 (citations and 

internal quotations omitted). 

Since Noettl conducted no tests and failed to attempt to 

calculate any of the forces on Oddi or the truck during this 

accident, he used little, if any, methodology beyond 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 Oddi's 

horrific injuries. Similarly, no standards control his 

analysis, and no "gatekeeper" can assess the relationship of 

Noettl's method to other methods known to be reliable and 

the non-judicial uses to which it has been put. Clearly, the 

district court did not abuse its discretion in excluding 

Noettle's proffered expert opinion testimony. 

 35 
We 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 Kazarian's 

expert opinion testimony did not satisfy Daubert . 3/31/99 

Dist. Ct. Op. at 15-16. Kazarian's expert opinion went to 

the "enhanced injuries" element of the crashworthiness 

claims. Unless Oddi can establish that the defendants' 

design and/or manufacture enhanced injuries he would not 

have otherwise sustained, or caused him to sustain injuries 

that he would not have sustained otherwise, there can be 

no recovery under a theory of crashworthiness. 

Carrasquilla, 963 F. Supp. at 458. Consequently, even 

assuming arguendo that Oddi convinced us that Noettl's 

testimony was improperly excluded, his failure to address 

the admissibility of Kazarian's testimony means that Oddi 

has no admissible evidence to demonstrate the "enhanced 

injuries" elements of a crashworthiness claim. 21 

C. The District Court Properly Granted Summary 

 Judgment on the Negligent Failure to Test Claim. 

Finally, Oddi argues that the district court erred by 

granting summary judgment to Ford and Grumman on his 

negligent failure to test claim. As noted, Oddi claims that a 

manufacturer has an affirmative duty to test its product to 

see if it is defective. He then contends that "it is within the 

comprehension of lay jurors to understand that if the 

Defendants had tested this truck, they would have been 

aware that, in an accident, its design would defeat the 

purpose of a guardrail." Oddi's Br. at 27. Accordingly, Oddi 

argues that even if his expert testimony was properly 

excluded, his negligence claim still survives because he 

does not need expert testimony to establish that claim. 

As a general principle, "[e]xpert evidence is not necessary 

. . . if all the primary facts can be accurately and intelligibly 

_________________________________________________________________ 

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

Oddi believes even if it had been admitted. Kazarian conceded that he 

had no opinion on what injuries Oddi would have suffered had there 

been no compromise to the floor of the occupant compartment and had 

no opinion on what injuries Oddi would have sustained if the truck had 

not ramped the guard rail. 

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

understanding, are as capable of comprehending the 

primary facts and of drawing correct conclusions from them 

as are witnesses possessed of special or peculiar training of 

the subject under investigation." Padillas , at 415-16 

(citation omitted); see also Cipriani v. Sun Pipe Line Co., 

574 A.2d 706, 710 (Pa. Super. 1990)("However, expert 

testimony is not required when the matter under 

consideration is simple and lack of ordinary care is obvious 

and within the range of comprehension of the average 

juror.")(citations omitted). Although expert evidence is 

generally required in a products liability case where a 

defect is alleged, we have never foreclosed the possibility 

that a defective condition may be established through nonexpert evidence. In Padillas we opined that since the case 

was at the summary judgment stage, it was "premature 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 jury." Id. 

The truck Oddi was driving is not at all like the chicken 

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 design 

defect. In addition, in Padillas, plaintiff offered nonexpert 

testimony including, but not limited to, reports from 

defendant's own employees that referred to "Safety 

Problems," and a report from the defendant's engineering 

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 front 

bumper and the flooring of the cab of the truck Oddi was 

driving and reasonably conclude, not only that its design 

was defective, but also that testing would have disclosed 

the defect and that it could have been remedied. Such 

conclusions are within the peculiar competence of experts. 

Inasmuch as Oddi's "defect expert" does not survive

Daubert scrutiny, the district court properly granted 

 37 
summary judgment to Ford and Grumman on Oddi's 

negligent failure to test claim.22 

VI. CONCLUSION. 

We are not unsympathetic to Oddi. He suffered horrific 

and catastrophic injuries while driving the truck that had 

been designed and/or manufactured by the defendants. 

That does not, of course, establish that either defendant is 

necessarily liable for any of those injuries or that Oddi's 

proffered proof was sufficient to prove liability on their part. 

Nor does our holding suggest that every plaintiff must 

engage in such sophisticated and refined testing (including 

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 practicalities 

of class certification. The inquiry required under Daubert 

ought not to become an impenetrable barrier for plaintiffs 

with limited resources or restricted circumstances. As noted 

above, the Supreme Court reminds us that the "inquiry 

envisioned by Rule 702 is . . . a flexible one." Daubert, 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 testimony 

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 affirm 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. Oddi's Br. at 27. That is 

incorrect. Ford's and Grumman's summary judgment motions were 

directed to all of Oddi's claims, including his negligence claims. 

 38