MALACHY E. MANNION, District Judge.
This is a product liability case in which Dyvex alleges that Agilex's defective Perfectly Pomegranate Gras Oil ("PPG") polymer fragrance oil caused a fire while it was being processed and significantly destroyed its facility. Pending before the court are Agilex's motion to preclude Dyvex's expert witness, namely, Alex Profka, from offering any opinions regarding the origin of the fire at the Dyvex facility, Doc. 98, and Agilex's motion to preclude Dyvex from offering its expert witness, namely, Christian Rauwendaal, on the origin and cause of the fire, Doc. 104. Agilex contends that the opinions of Dyvex's experts regarding the origin and cause of the fire are unqualified and unreliable and, it seeks to preclude both experts from offering their opinions at trial. Agilex also argues that since Profka and Rauwendaal should be precluded from testifying and since their expert opinions cannot, as a matter of law, support Dyvex's claims on the requisite issue of causation, it is entitled to summary judgment. Based upon the court's review of the instant motion and related materials, the court will
The remaining claims raised by Dyvex in its complaint, (Doc. 1), against Agilex are for negligence, breach of warranty, and strict liability.
On April 3, 2017, Agilex filed both of its motions to completely preclude Profka and Rauwendaal, Dyvex's main expert witnesses regarding the origin and cause of the fire, from testifying, (Docs. 98 & 104), and simultaneously filed its briefs in support of its motions, (Docs. 99 & 105). After an extension of time, Dyvex filed its briefs in opposition to both motions on April 21, 2017, (Docs. 116 & 117). Agilex filed its reply briefs on May 5, 2017, (Doc. 119), and on May 10, 2017, (Doc. 124). Dyvex was granted leave to file a sur-reply brief to Agilex's Doc. 98 motion and it did so on May 12, 2017, (Doc. 129). Both of Agilex's motions are fully briefed and both parties filed exhibits.
Agilex's instant motions seek, in part, to exclude evidence as irrelevant. It is axiomatic that "irrelevant evidence is not admissible."
Agilex's motions also seek to exclude expert testimony from Profka and Rauwendaal at trial. The admissibility of expert testimony is governed by under
When faced with a proffer of expert testimony, the court must determine "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."
In performing its gatekeeping function to determine whether an expert's report is relevant and reliable under Daubert and Rule 702, "the court is not to weigh the evidence relied upon or determine whether it agrees with the conclusions reached therein. . . . Determinations regarding the weight to be accorded, and the sufficiency of, the evidence relied upon by the proffered expert are within the sole province of the jury."
The Third Circuit stated in
Further, the Court in
The Court in Walker provided guidance on the role of the trial court with respect to its gatekeeping requirements. The Court in
An expert need only have "good" grounds for his opinion. The basis might be imperfect to such a degree that the court would find there is some different conclusion that has stronger evidentiary support, but that does not justify exclusion.
By way of relevant background, Dyvex's partial summary judgment motion was granted and the court basically precluded Agilex from asserting any of its defenses to Dyvex's claims which rely upon industry safety rules and regulations found in OSHA and in various other safety provisions and building codes, such as ANSI and BOCA. (Docs. 156 & 157). As such, any of Agilex's arguments with respect to its Doc. 98 and Doc. 104 motions seeking to preclude Profka and Rauwendaal from testifying as to their fire origin and causation opinions which rely upon any of the stated safety rules, regulations and codes will not be considered.
In its Doc. 98 motion, Agilex seeks to preclude Profka from testifying for Dyvex at trial pertaining to his opinions arguing that they are unreliable, speculative and unsupported by the evidence as to the origin of the fire and, that he cannot establish a causal nexus between the PPG and the fire. Agilex contends that Profka should be precluded from testifying and, that it should be granted summary judgment because Profka's expert reports and opinions cannot support Dyvex's claims with respect to the required elements Dyvex must prove.
Profka is a fire origin expert witness for Dyvex. Dyvex submitted an expert report, dated July 1, 2014, from Profka and a supplemental expert report from Profka, dated on July 1, 2015. (Doc. 99, Ex. C). Profka was also deposed in this case. (Doc. 99, Ex. D). On June 4, 2010, Profka investigated the fire at Dyvex on behalf of its insurance company, Nationwide. Agilex argues that Profka was not able to determine the origin and cause of the fire, and that his opinions are not based on sound scientific principles and generally accepted methodology in violation of FRE 702 and Daubert.
No doubt that if Dyvex has failed to present facts sufficient to establish the existence of an element essential to its case on which it would bear the burden of proof at trial, i.e., that Agilex's PPG caused the fire in its building, then Agilex is entitled to summary judgment in its favor on Dyvex's two remaining claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.").
Profka has investigated the origin and cause of fires since 1976, including many years as a PSP fire investigator, and he has authored over 4,000 reports during his career. He has also testified as an expert witness in both state and federal courts. In his initial report, Profka rendered an opinion regarding the origin of the fire and concluded as follows:
Profka also opined in his July 2014 report as follows:
As such, Profka found that the blackened spots were fire patterns which supported his opinion. Further, Profka concluded that the fire was the result of "the low flashpoint of scented Perfectly Pomegranate being injected with the plastic product, inside the machine, a Buss Kneader."
In his supplemental report, Profka stated as follows:
Agilex contends that Profka failed to address the ignition source of the fire and, that he failed to perform "any testing or analysis to confirm that the presence of the black spots was evidence of the fire origin." Agilex also points out that Profka incorrectly concluded that PPG was being injected into the kneader machine at the time of the fire since its evidence showed that an unknown fragrance oil was being processed when the fire started. It states that Profka neglects to acknowledge and to explain other evidence in the case which contradicts his opinions, such as Manchio's statement that he first saw the fire outside of the kneader machine, that the oil leaked from the machine and then ignited, and that the fire grew rapidly, indicating that the fire would need a fuel source.
Agilex contends that Profka's opinions are not consistent with generally accepted methods of fire investigation since Profka has never interviewed Manchio and never read Manchio's deposition testimony. Rather, Agilex maintains that Profka's opinions in his reports were based on information he received from Dyvex's counsel and other people, including Strony, Depoti, and Trooper Andress, who were not present in Dyvex's building at the time of the fire. Agilex points to Profka's testimony in which he admitted that he "mainly [relied] on Trooper Andress [regarding his opinions] because he was the one [who] interviewed Mr. Manchio." Significantly, Agilex indicates that Profka admitted that he did not remember Andress telling him that he thought the fire started inside the kneader machine. Rather, Profka only recalled Andress told him that Manchio emptied two Dry-Chem fire extinguishers onto the machine and not anywhere else.
Agilex states that Andress actually interviewed Manchio, unlike Profka who did not, and according to Andress' report, Manchio indicated that he was pumping fragrance oil into the kneader machine when the flammable oil began to leak from a seam surrounding a heating chamber, and that the oil ignited. The report also indicated that Manchio used two Dry-Chem extinguishers on the fire, but that it spread very quickly. (Doc. 99, Ex. B). Andress concluded in his report that the fire was accidental, that "[f]ire damage surrounding [the kneader] machine clearly indicates that this is the point of origin", and that "[t]his fire began when flammable oil ignited on an extrusion machine, which in turn ignited other combustible materials."
Additionally, Agilex states that Profka admitted that he did not perform any testing at all in this case and testified that "[testing] would be left to the engineers that were going to be called in. And that's why I told Mr. Strony and Mr. Depoti not to move anything until the engineer got there to determine exactly why this fire occurred in the machine." Agilex also contends that Profka's methodology he used to investigate the fire and to reach his opinion that the fire's origin was in the kneader machine was grossly deficient since he used his own "scientific method" which included only looking at "maybe [one-third to one-half] of [Dyvex's] building" as opposed to the entire fire scene. Profka also indicated that the building was "pretty dark" at the time he was in it, and that his entire investigation of the fire scene was less than four hours. Agilex maintains that Profka's so-called "my scientific method" that he utilized was not in conformance with any of the applicable scientific methods, including those provided in the National Fire Protection Association ("NFPA") and ASTM standards, and points out that Profka has only scanned the NFPA and never read it completely. Agilex indicates that Profka's method was contrary to NFPA 921's method of first properly establishing the origin of the fire prior to investigating the potential causes, since he merely relied upon Andress' report instead of independently assessing the origin of the fire himself as well as the validity of anyone else's opinions. Indeed, "[s]everal courts, including this one, have recognized that NFPA 921 offers a comprehensive and detailed treatment for fire investigation and have held its methodology is reliable for purposes of Rule 702." Hoang v. Funai Corp., Inc., 652 F.Supp.2d 564, 568 (M.D.Pa. 2009) (citations omitted).
Agilex states that Profka's opinions and reports are flawed since he had a preconceived notion of what caused the Dyvex fire and since he presumed the fire started in the kneader machine in violation of NFPA 921, which provides that "[a]ll fires . . . should be approached by the investigator without presumption", which renders his opinions as unreliable. Thus, Agilex concludes that Profka had "confirmation bias" since he failed to come up with any other hypotheses for potential origins of the fire and since he failed to rule out any other possible cause or origin for the fire. Rather, Agilex states that Profka "simply ruled that the fire originated inside the machine and that's where he left it, looking no further."
Agilex states that since Profka's methodology for determining the origin of the fire inside the kneader machine is not reliable and does not conform to generally accepted standards and methodology in his field of expertise, i.e., fire investigations, and since it is contrary to the physical and objective evidence he relied upon, i.e., the evidence indicated that the origin of the fire was outside the machine, his reports and opinions should be stricken as unreliable. Agilex states that since Profka's reports and testimony should be precluded at trial, Dyvex will not be able to prove that its PPG caused the fire and, that it is entitled to summary judgment on Dyvex's remaining claims. For support, Agilex cites to State Farm Fire and Casualty Co. v. Holmes Products, 165 Fed.Appx. 182, 187 (3d Cir. 2006) (Third Circuit held that "[u]nder Pennsylvania law, causation is an essential element of a strict products liability claim, [ ], and [ ] plaintiff, has the burden of proving this essential element" to survive a motion for summary judgment.)(internal citations omitted), and Breidor, 722 F.2d at 1138 ("Where a fire investigator identifies the cause of fire in terms of probabilities (as opposed to mere possibilities) by eliminating all but one reasonable potential cause, such testimony is highly probative."). In Holmes Products, 165 Fed.Appx. at 187, the Third Circuit also stated that "[w]ithout evidence sufficient to create a material issue of fact regarding causation, a jury could only speculate as to whether the [defendant's product] was indeed the cause of the fire."
Agilex essentially argues that the court should completely exclude Profka's testimony since he was only able to state how the fire in Dyvex's building started in terms of mere possibilities and since his opinion that the fire originated in the kneader machine was not sufficiently supported by evidence in the record. In fact, Agilex states that its expert witness, Long, noted in his report that there is no indication in "Profka's report that he followed the scientific method to completion when conducting his investigation." Agilex also faults Profka for failing to keep his field notes after he issued his initial report four years later and argues that it was prejudiced by his deliberate destruction of evidence in violation of NFPA. Agilex further argues that it was denied the chance to interview Manchio after the fire.
Dyvex states that Agilex does not accurately portray Andress' findings and conclusions, particularly with respect to his conclusion that the fire originated on the kneader machine and not in it. It states that Profka's methodology was based upon his vast experience in fire investigations and that his opinions are supported by the burn patterns found after the kneader machine was opened. Dyvex states that even though Andress concluded in his report that the "fire began when flammable oil ignited on an extrusion machine", he testified at his deposition that he had no idea what caused the ignition and that he did not know what the heat source was. Andress stated that he knew the kneader machine was where the fire began and that the heat source was "inside the machine or part of the machine", such as "a burn chamber or heat chamber." (Doc. 116-7). Thus, Dyvex states that Profka's opinion was not contrary to Andress' testimony and that Profka explained how he reached his opinion that the fire started in the kneader machine, which opinion was also based on the blackened areas found inside the machine when it was opened. In fact, Dyvex states that "Agilex's affirmative defense is that the fire did not start inside the kneader, yet its experts have never explained how a fire starting outside the kneader accounts for the localized burning inside corresponding to the location where the PPG, with a 93° F. flash point, was injected."
Dyvex also points out that Profka's investigation was limited to the origin of the fire and, thus states that Agilex's attempt to discredit him from failing to use the scientific method and test hypotheses is without merit. It further states that Profka's investigation was in compliance with NFPA and ASTM standards and, that NFPA 921 is only a guide which allows the investigator to have flexibility and to rely on his/her own judgment to approach each investigation on a case-by-case basis. Dyvex also indicates that Profka's opinion as to the origin of the fire was almost the same as Long's opinion that "the area of origin was at the Buss kneader [machine]" and, Caulfield's opinion that "[t]he origin of the fire is clearly in the vicinity of the Buss-Kneader."
Moreover, since Manchio indicated that the fire was at the kneader machine and that he discharged the fire extinguishers at the machine, Profka's initial report was consistent with Manchio's statement. Profka opined as follows:
(Doc. 116, Ex. D).
In his supplemental report, Profka also considered a low level fire and the opinions of Agilex's experts that the fire many have started at or near floor level, and at his deposition he stated:
(Doc. 116, Ex. E).
As such, Dyvex, (Doc. 116 at 17), explains as follows:
Additionally, Profka's origin opinions are consistent with the opinions of another one of Dyvex's experts, namely, Christian Rauwendaal, who opined in his report that:
(Doc. 116, Ex. M).
It is clear that Dyvex must have a cause and origin expert to provide an opinion to a reasonable degree to scientific certainty regarding the origin of the fire in its building as well as the cause of the fire. See Holmes Products, supra. Profka is one of Dyvex's experts regarding only the origin of the fire and it has other experts to establish its claim that Agilex's PPG caused the fire. Although Agilex argues that Profka's opinion that the fire started in the kneader machine is contrary to the evidence he relied upon to reach it, including Andress' report and Manchio's statement to PSP, and that Profka did not perform any testing and used his own methodology, Profka was an extremely experienced fire investigator for many years with the PSP, testifying in many criminal cases as an expert witness for the Commonwealth and later, as an expert witness in state and federal court. Thus, the court will allow Profka to testify regarding all of his opinions, including the origin of the fire. Further, while Agilex did not interview Manchio after the fire, Manchio was later deposed and his initial statements were taken by the PSP and reflected in the PSP report. At trial, Agilex will be able to cross-examine Manchio regarding any inconsistencies it alleges exist between his statement to PSP and his deposition testimony.
In this case, as discussed in detail in the court's prior Memoranda, the court has found that Dyvex has presented sufficient evidence to create a material issue of fact regarding whether Agilex's PPG was being processed at the relevant time and whether it caused the fire at its building. As the court has previously found in this case, it will be for the jury to decide what fragrance oil was being processed by Dyvex at the time of the fire, where the fire started, and what caused the fire. Thus, the jury will decide the disputed fire origin and cause issues. Even though there is conflicting evidence regarding the stated issues, this is not grounds to exclude Profka's opinions. Agilex will be able to cross-examine Profka at trial regarding all of its above stated contentions challenging his opinions, as well as his failure to keep his field notes and, the jury will ultimately decide Profka's credibility and the weight afforded to his testimony. See Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 415 (3d Cir. 2002) ("A party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination.").
After examining the fire scene shortly after the fire, Profka, a very experienced fire investigator, has provided enough of a logical basis regarding his stated opinions as to the possible origin of the fire. See Breidor, 722 F.2d at 1138-1139. As the court held in Hoang, 652 F.Supp. 2d at 572, "[Profka's] inspection of the premises, origin determination, and analysis of the potential sources of the fire is relevant to the issues before the Court." Thus, Agilex's motion, (Doc. 98), insofar as it seeks to preclude Profka's opinions and to preclude him from testifying, will be
As stated, Dyvex has the burden to prove the origin and cause of the fire with respect to its two remaining claims against Agilex. Profka will be allowed to testify for Dyvex about the origin of the fire. Rauwendaal is Dyvex's fire cause and ignition source expert witness and, he issued an expert report for Dyvex. (Doc. 105, Ex. C). Rauwendaal was also deposed in this case. (Doc. 105, Ex. D). Agilex seeks to completely preclude Rauwendaal from rendering his opinions at trial. Agilex also states that since Dyvex has failed to produce any other evidence or testimony, besides Rauwendaal's, as to the cause of the fire, it is entitled to summary judgment on Dyvex's remaining claims.
In his report, Rauwendaal opines as follows:
Thus, stated concisely, Rauwendaal opines that while Dyvex was processing PPG, the PPG was the first fuel ignited when the fire occurred and, that the ignition of the PPG was caused by a spark inside the kneader machine. He further opines that the spark occurred from metal-to-metal contact between the barrel pins and the screw flights inside the machine.
In its Doc. 104 motion, Agilex seeks to preclude Dyvex from offering the expert causation and fire origin opinions of Rauwendaal at trial arguing that he is unqualified to state that the fire began in the kneader machine, and that his opinions are speculative, unreliable and unsupported by the evidence as to the cause and origin of the fire. Agilex also states that Rauwendaal took no steps to confirm what was actually being processed by Dyvex in the machine at the time of the fire, and that Rauwendaal cannot establish a causal nexus between its PPG and the fire. Agilex again argues that there is no physical evidence to show that Dyvex was processing PPG at the time of the fire. Agilex contends that Rauwendaal should be precluded from testifying and, that it should be granted summary judgment because his expert report and opinions cannot support Dyvex's claims with respect to the required causation element Dyvex has the burden to prove.
Rauwendaal opines that a spark inside the kneader machine was the ignition source for the fire. Agilex states that there is no testing or evidence which supports Rauwendaal's opinion and that he does not even know the type of internal materials in the machine. Agilex contends that "no evidence of metal-to-metal contact was identified in his report" and that "no testing or evidence that a spark can even occur from contact between the metals that are present inside the Buss-Kneader machine has been performed or revealed." It states that Rauwendaal's opinion is based entirely on speculation, that it fails to adhere to the scientific method and, that it is not supported by the evidence.
Agilex also contends that Rauwendaal is not qualified to render his opinions regarding the origin, i.e., the fire started in the kneader machine, and the cause of the fire, since he admitted that he was not a fire cause and origin expert, that he had no experience with fire investigations and, that he had no training and no certification in fire cause and origin analysis. He also admitted that he was not aware of any such prior fires like the one that occurred in this case, i.e., inside kneader machine, and that the fire was a "unique occurrence." Agilex states that Rauwendaal did not even perform any testing to confirm that the internal make-up of the kneader machine was capable of combustion, ignition, and sustaining a fire. Thus, since Rauwendaal does not know the industry standards for testing, Agilex contends that he is not qualified to opine that the standards were not met in this case. Therefore, Agilex states that Rauwendaal is not qualified to render any opinions as to the cause or ignition source of the fire.
Agilex also quotes excerpts from Rauwendaal's deposition testimony arguing that his testimony undermines his above opinions, and that his unreliable testimony, if allowed at trial, would require the jury to guess as to the fire's case and origin. (Doc. 115 at 15-20). Agilex maintains that Rauwendaal's opinions are not reliable since he did not follow NFPA 921 guidelines, he did not perform any testing, and his opinions were not derived from any testable hypothesis. Agilex also points out that Rauwendaal did not provide any factual predicate to support his opinion that the ignition source of the fire was metal-to-metal contact in the kneader machine. Thus, Agilex argues that Rauwendaal "offers no evidence, data, or test results to support his theory that a spark inside the Buss kneader was the ignition source for the fire or that a spark even occurred", and that his opinion did not adhere to the scientific method and was not supported by the evidence.
Additionally, Agilex states that no testing was possible to support Rauwendaal's finding that the flashpoint of the molten plastic was too high to cause a fire since Dyvex's counsel advised Long that "no polymeric material remained after the fire as the polymeric material was consumed in the fire." Thus, Agilex contends that there was no polymer sample available to test or to support Rauwendaal's theory. Agilex also points out that Rauwendaal contradicted his report in his deposition when he testified that "it wasn't impossible" that the polymer itself could be ignited.
Dyvex argues that Rauwendaal was well-qualified to render his opinion that a spark inside the kneader machine was the ignition source for the fire and that PPG was the first fuel ignited by the spark due to its low flash point. Rauwendaal is "an expert in plastic extrusion and compounding, and in polymeric materials." Dyvex states that "[h]e has designed components for the internal screws in extrusion machines, and for the dies at the discharge end, and his thesis for his Ph.D. in mechanical engineering was about backflow in screw extruders." Rauwendaal has also published over 200 scientific papers and 7 books, and he has lectured worldwide. (Doc. 117, Exs. B & H). Even though Rauwendaal is not a fire investigator, Dyvex states that Agilex's own experts, including Rust, Caulfield and James Rancourt, are not fire investigators, and are not fire cause and origin experts. Dyvex also states that its fire was indeed unique as Rauwendaal explained and simply because he had no experience in a fire like the one in this case, neither Caulfield nor Rust ever investigated a kneader machine fire either. However, Dyvex points out that Rauwendaal has far more experience with kneader machines, i.e., kneader compounding extruders, than Rust and Rancourt. Dyvex indicates that Rauwendaal also has experience with fires originating in extruder machines when processing other materials, and thus was well-quailed to render his opinion that the kneader machine in this case had an internal spark that set off the ignition of an internal fire.
Dyvex states that "Rauwendaal reached his opinion about spark generation based on post-fire physical evidence, namely, deformed metal pins in a location within the kneader barrel that corresponds to where PPG was introduced and where blackening and charring was left after the fire." It states that the internal components of the kneader machine are metal as Rauwendaal indicates since they have rusted after the incident and, that the deformed pins in the machine proves that they contacted each other. It states that Rauwendaal's opinions are reliable and can be proven to a reasonable degree of scientific certainty. Dyvex explains that Rauwendaal's opinions that the metal-to-metal contact between the pins "produced sparks and ignited a volatile mixture of air and PPG vapors" is supported by the evidence, namely, "the localized charring and oxidation where the PPG was injected to be compounded with molten polymer." It states that there is no dispute that localized charring of partially processed material was found inside the barrel of the kneader machine. Dyvex contends that there was ample evidence to support Rauwendaal's conclusion that there was localized charring inside the barrel of the machine since the fire originated there, and that he was well-qualified to render his conclusion. Dyvex points out that it is undisputed that there was evidence of burning and charring inside the kneader barrel. Rauwendaal also found that the localized burning which occurred inside the kneader machine "cannot be explained by any outside ignition scenario." Dyvex also points out that Rauwendaal is well-qualified to render his opinion that the wear of one of the barrel pins was caused by metal-to-metal contact since he has published papers and chapters, as well as written books, namely, "Polymer Extrusion" and "Troubleshooting Extrusion Problems", discussing the incidence of metal-to-metal contact inside kneader machines.
In short, Dyvex contends that Rauwendaal was qualified as an expert regarding kneader machines to explain what caused the pins in Dyvex's kneader machine to be worn and deformed, and to render his conclusion that "when the extruder is partially filled, as in the Buss kneader, metal-to-metal contact can certainly create a spark." Dyvex also shows how Rauwendaal was qualified to explain why the fire progressed quickly in this case and why the fire did not go out by itself based on the fact that there was "a continuing supply of oil and a continuing supply of oxygen by the air being pulled into the machine" and that "as long as the oil [was] being pumped, there was no way for that fire to go out by itself."
Further, Dyvex indicates that Rauwendaal ruled out other possible causes of the fire, including ruling out the ignition of spilled or leaked oil from the machine since the oil would remain at room temperature if it leaked, as well as ruling out a spark outside of the machine. Additionally, Rauwendaal explained that an ignition of the polymer alone did not cause the fire since the PPG supplied the "ignitable volatiles" and since the molten plastic "has a flash point much too high to be ignited by a spark." Finally, he ruled out operator error as the cause and found no evidence that Dyvex was using the kneader machine beyond its limits. (Doc. 117 at 12-13).
Additionally, Dyvex states that Rauwendaal also relied upon the hard drive in the computer for the kneader machine to support his initial conclusion as to the cause of the fire:
(Doc. 117, Ex. A).
After Dyvex had an IT consultant obtain more information from the hard drive, Rauwendaal analyzed it and then concluded as follows:
(Doc. 117, Ex. B).
Rauwendaal then concluded that "when the extruder is partially filled, as in the Buss kneader, metal-to-metal contact can certainly create a spark." As such, Dyvex argues that Rauwendaal is qualified, that his opinions are based on the evidence as well as scientific methods, that his testimony fits, and that his testimony is relevant and material to the issues it must prove with respect to its claims. Thus, Dyvex states that Rauwendaal can sufficiently establish requisite elements of its claims, including that a causal connection existed between Agilex's PPG and the fire. Therefore, Dyvex maintains that Rauwendaal's opinions regarding the fire's origin and cause, i.e., Agilex's PPG, are to a reasonable degree of scientific certainty.
Initially, insofar as Agilex challenges Rauwendaal's opinions based on its contention that there is no evidence that PPG was being processed by Dyvex in the kneader machine at the time of the fire, the court will not revisit its finding that the jury will decide this issue. Agilex also challenges Rauwendaal's contention in his report that Manchio "observed the fire starting in the Buss kneader compounding extruder", based on the PSP report which indicated that while Manchio was pumping oil into the kneader machine, the flammable oil began to leak from a seam. However, as discussed, Manchio's later deposition testimony was that he never observed oil leaking from a seam of the kneader machine, and the jury will decide the credibility of Manchio at trial. As the Third Circuit stated in
Agilex also insists that there is no evidence that metal-to-metal contact occurred inside the kneader machine and, states that Rauwendaal "offered no hypothesized explanation of how or why the sparks would have failed to ignite a fire previously inside a machine in the polymer processing industry." Even though the basis for Rauwendaal's opinions might be imperfect to such a degree that the court would find there is some different conclusion that has stronger evidentiary support, that does not justify exclusion of them.
In liberally considering Rauwendaal's qualifications, as the Third Circuit requires, see
Thus, the court will
Accordingly, the court will
