NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-2232
______
CHRISTOPHER FURLAN; VALERIE FURLAN, Parent and Natural Guardian of
R.T.F.
Appellants
v.
SCHINDLER ELEVATOR CORP.
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:10-cv-06870)
District Judge: Honorable Jan E. DuBois
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 19, 2013
Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: March 19, 2013)
______
OPINION OF THE COURT
______
VAN ANTWERPEN, Circuit Judge.
Christopher and Valerie Furlan, together and as parents of their three-year-old son
(collectively ―Appellants‖), appeal from the United States District Court for the Eastern
District of Pennsylvania’s Order granting Schindler Elevator Corporation’s (―Schindler‖)
1
motion to preclude testimony of Appellants’ expert witness and granting Schindler’s
motion for summary judgment. For the reasons that follow, we will affirm.
I. Facts
Because we write for the parties, we review only the essential facts necessary for
resolution.1 On Memorial Day, May 29, 2006, Appellants were perusing the aisles of the
Boscov’s Department Store in the Granite Run Mall in Media, Pennsylvania. While the
family was on the lower level of the department store, the Furlans’ three-year-old son
somehow got his hand caught in the return area of the ―down‖ escalator. The return area
constitutes the space where the escalator’s moving handrail enters the escalator’s
―balustrade‖—that is, the escalator’s side wall. As a safety precaution, the return area is
surrounded by a plastic guard, meant to protect against just this sort of accident. This
plastic guard, appropriately, is referred to as a ―hand‖ or ―finger guard.‖
No one saw the accident, but the Furlans rushed to their son upon hearing his
screams. The son’s left hand was lodged in the escalator’s return area all the way to his
palm. Mr. Furlan immediately pressed the escalator’s emergency stop button, pulled his
son’s hand from the opening, and assessed the damage. The son’s hand was injured, and
Mr. Furlan observed ―a lot of denuded flesh.‖ (Appendix ―App.‖ at A128.) The family
immediately rushed the son to the nearest emergency room. After surgery and physical
1
Additionally, because we are tasked with reviewing a grant of summary judgment, we
set forth the facts in the light most favorable to Appellants. See Pastore v. Bell Tel. Co.
of Pa., 24 F.3d 508, 511–12 (3d Cir. 1994) (factual inferences ―should be drawn in the
light most favorable to the non-moving party, and where the non-moving party’s
evidence contradicts the movant’s, then the non-movant’s must be taken as true‖ (quoting
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992))).
2
therapy, the record reflects that the son seems, thankfully, to have regained full use of his
hand.
Schindler’s involvement in this litigation arises from a contract for repairs and
preventative maintenance between Schindler and Boscov’s. According to the
Preventative Maintenance Agreement (―PMA‖), Schindler was and is contractually
obligated to perform maintenance and upkeep services on the elevators and escalators in
several Boscov’s stores, including the one located in the Granite Run Mall. The contract
dictates that Schindler ―[t]est all operating and safety devices as required‖ by the
American National Standards Institute (―ANSI‖) A-17.1 safety code applicable to
elevators and escalators.2 (Id. at A213.) Schindler was also obligated to ―make only
those replacements, adjustments, and repairs required . . . due to ordinary wear and tear‖;
and was ―not . . . required to . . . install new devices on the equipment which may be
recommended or directed[,] . . . make changes or modifications in design, [or] . . . make
any replacements with parts of a different design.‖ (Id. at A215.) Boscov’s guaranteed
to ―provide a safe work place‖ for Schindler employees, and Schindler would ―notify
[Boscov’s] of any work place or conditions [it] believed to be unsafe.‖ (Id.) Schindler
also assumed no responsibility for certain items and parts of the elevators and escalators,
which included the escalator balustrades. (Id. at A213, A215.)
2
Because the escalator in question was installed in 1974, the 1971 edition of the ANSI
Code applies. Later editions of the ANSI do not apply retroactively. Section 805 of the
1971 edition of the ANSI Code enumerates the operating and safety devices required on
all escalators. A hand or finger guard is not among those classified ―operating and safety
devices.‖ (App. at A378–81.)
3
Appellants initiated this action in the Court of Common Pleas of Delaware
County, Pennsylvania. Appellants’ original complaint brought claims of strict products
liability, breach of warranties, and negligent maintenance. On Schindler’s motion, the
case was removed to the United States District Court for the Eastern District of
Pennsylvania on diversity grounds.3 Appellants later withdrew their claims for strict
products liability and breach of warranties, and proceeded on only their negligent
maintenance claim. At the close of discovery, Schindler filed a motion pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to exclude the
testimony of Appellants’ expert witness, Richard Kennedy. Schindler also filed a
companion motion for summary judgment. On March 29, 2012, the District Court
granted Schindler’s Daubert motion and entered summary judgment in Schindler’s favor.
Appellants then filed a timely appeal.4
II. Standard of Review
We exercise plenary review over the District Court’s interpretation of Federal
Rule of Evidence 702. Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000). But
we review the decision to exclude expert testimony for abuse of discretion. Gen. Elec.
3
Appellants are citizens of Pennsylvania, and Schindler is an entity incorporated in the
State of Delaware, with its principle place of business in New Jersey. 28 U.S.C. § 1332;
id. § 1332(c)(1) (―[A] corporation shall be deemed to be a citizen of any State by which it
has been incorporated and of the State where it has its principal place of business . . . .‖);
see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68 (1996). Also, section 1332’s
amount in controversy requirement is fulfilled, as at the time of removal Appellants had
yet to abandon their strict products liability and breach of warranties claims. (See App. at
A332–34 (original complaint demanded damages of $150,000 plus interest and costs).)
4
We exercise jurisdiction under 28 U.S.C. § 1291.
4
Co. v. Joiner, 522 U.S. 136, 139 (1997). We review de novo whether summary
judgment was appropriate. Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005).
III. Discussion
For the reasons that follow, we will affirm the District Court’s Order granting
Schindler’s motion to preclude testimony of Appellants’ expert and entering summary
judgment in Schindler’s favor.
A. Expert Testimony
It was not an abuse of discretion for the District Court to have precluded
Appellants’ expert, Robert Kennedy (―Kennedy‖), from testifying. The District Court
excluded Kennedy’s testimony on the ground that it was not sufficiently reliable.
Appellants argue that we interpret the requirements for admissibility of expert testimony
in a liberal fashion; and that Kennedy’s practical experience in the field of elevator and
escalator maintenance qualifies his opinion as reliable. Alternatively, Appellants argue
the District Court abused its discretion by failing to hold an in limine hearing prior to
ruling on the Daubert motion. In response, Schindler argues an in limine hearing was
unnecessary, as the expert report, deposition testimony, and briefing were enough for the
District Court to have concluded Kennedy’s opinion was unreliable.
Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or data;
5
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
FED. R. EVID. 702. Daubert explains courts’ gatekeeping function under Rule 702 is ―a
flexible one‖; and the focus ―must be solely on principles and methodology, not on the
conclusion that they generate.‖ Daubert, 509 U.S. at 594–95.
We have recognized Rule 702 ―embodies a trilogy of restrictions on expert
testimony: qualification, reliability and fit.‖ Schneider ex rel. Estate of Schneider v.
Fried, 320 F.3d 396, 404 (3d Cir. 2003). ―Qualification refers to the requirement that the
witness possess specialized expertise.‖ Id. To establish reliability, the testimony ―must
be based on the methods and procedures of science rather than on subjective belief or
unsupported speculation; the expert must have good grounds for his on [sic] her belief.‖
Id. (quoting In re Paoli R.R. Yard PCB Litig. (Paoli II), 35 F.3d 717, 742 (3d Cir. 1994))
(internal quotation marks omitted).5 As for fit, ―the expert’s testimony must be relevant
for the purposes of the case and must assist the trier of fact.‖ Id.
5
Factors to be taken into consideration when evaluating the reliability of a particular
methodology 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.
Elcock v. Kmart Corp., 233 F.3d 734, 745–46 (3d Cir. 2000).
6
Whether to hold an in limine hearing upon a Daubert objection is an issue that
―rests in the sound discretion of the district court.‖ Padillas v. Stork-Gamco, Inc., 186
F.3d 412, 418 (3d Cir. 1999). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999) (―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.‖). A hearing may not be required in all
circumstances, particularly where the depositions, affidavits, or briefing before the court
are sufficient to perform a proper analysis. See Oddi, 234 F.3d at 151–54.
Here, we conclude that the District Court did not abuse its discretion in failing to
order an in limine hearing. Appellants claim the record is incomplete, alleging the
questions at Kennedy’s deposition prevented disclosure of relevant information. But, at
the same time, Appellants refrain from suggesting what information Kennedy was
prevented from disclosing or how that information would have advanced their position.
As a result, we reject Appellants’ claim that the District Court should have provided an in
limine hearing. The record before the District Court—which included Kennedy’s
deposition, Kennedy’s expert report, and briefing by the parties—was sufficiently
developed for the court to have concluded a hearing was unnecessary.
Additionally, after careful review, we conclude that the District Court did not
abuse its discretion in excluding Kennedy’s opinion. In particular, the District Court was
within its authority to have concluded that Kennedy’s report and deposition testimony
failed to demonstrate a reliable methodology for his opinion. The crux of Kennedy’s
7
opinion is that, first, the PMA required Schindler to maintain the integrity of the
escalator’s finger guard. Second, Kennedy opined that because Appellants’ son’s hand
became caught in the machine, the escalator’s finger guard must have been worn down.
He based this opinion, in part, on his review of several photographs of the finger guard at
issue.
Ignoring any issue with Kennedy’s interpretation of the PMA,6 Appellants have
failed to show that Kennedy’s opinion on the integrity of the finger guard is reliable.
Kennedy testified he had no experience with the particular escalator model at issue and
did not physically inspect the escalator until after his report was written. Kennedy also
concluded the finger guard was ―worn,‖ and that, therefore, Schindler had negligently
maintained that instrument. But this opinion was based on only (1) amateur photographs
taken at least a week after the accident had occurred and (2) the fact that the Appellants’
son managed to get his hand passed the guard and caught in the escalator’s handrail
return. Kennedy did not compare the photographs of the finger guard at issue with a
model (or, even, an additional photograph) of that same finger guard in a new condition.
In fact, Kennedy admitted that he had never seen that model of finger guard in a new
condition. Kennedy also admitted to having conducted no tests to determine the
adequacy of maintenance performed on the finger guard. Indeed, his testimony does not
6
On appeal, the crux of the dispute has focused on Kennedy’s opinion only as it relates to
the condition of the finger guard. We therefore do not discuss Kennedy’s interpretation
of the PMA. See McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 95 n.5 (3d.
Cir. 2012) (explaining that a party waives an issue not raised in its opening brief on
appeal).
8
show he used any methodology ―beyond his own intuition,‖ Oddi, 234 F.3d at 158, in
concluding the finger guard was ―worn.‖
As such, there is no evidence to support a conclusion that Kennedy used a reliable
methodology to conclude the finger guard was worn. The evidence presented shows
Kennedy’s methodology amounts to mere speculation. Essentially, Kennedy’s argument
is wholly tautological: ―The finger guard did not work as it was supposed to because it
did not work as it was supposed to.‖ An exchange from Kennedy’s deposition may be
illustrative:
Q. And do you agree that the photographs show that the finger guard is
in good condition?
A. I would not say that.
Q. Why not?
A. It looks like it’s worn to me.
Q. Where is it worn?
A. Every one of these photographs shows a space where a small child’s
hand could get in there.[7]
Q. Well, you said it was worn?
A. Worn, right.
Q. Does the photograph show any conditions of wear to the finger
guard?
A. These conditions look like they’re worn.
Q. In what way is the finger guard worn? Does it appear to be
damaged?
A. Worn.
Q. Does it appear to be damaged?
A. Well, I don’t know what this debris is that’s sticking out from it, but
it’s worn away.
Q. When you said it was debris, my question is, Does the finger guard
appear to be damaged?
A. Damaged to the extent that its worn, yes. It’s in a condition that will
not meet the requirements of 802.4C.
7
Of course, Kennedy concedes that there must exist some space between the finger guard
and the moving handrail in order for the escalator to function. Kennedy is unaware of
how small or large that space would have to be to provide maximum efficiency.
9
Q. That’s not my question. I want you to use a pen and circle on the
photographs where you believe the finger guard is worn?
[COUNSEL FOR APPELLANTS]: Any particular photograph?
[COUNSEL FOR SCHINDLER]: Any of them. All of them.
[KENNEDY]: Can’t tell there.
(App. at A243.) Such ―methodology‖ does not satisfy the Daubert threshold, even under
the most liberal standard.
As a result, we agree that Kennedy’s testimony would be no more than a
―subjective belief or unsupported speculation,‖ rather than opinion ―based on the methods
and procedures of science,‖ Oddi, 234 F.3d at 158, and thus would not assist the jury in
understanding or determining a fact at issue. We will affirm the Order of the District
Court precluding Kennedy’s expert testimony.
B. Summary Judgment
We agree that summary judgment was appropriately entered in Schindler’s favor,
because, as a matter of law, Appellants were unable to meet their burden to establish a
claim of negligent maintenance. The District Court found that, with the exclusion of
Kennedy’s expert testimony, the Appellants had not produced evidence from which a
reasonable jury could conclude that Schindler caused the injury at issue. Appellants
argue there is a dispute of material fact as to whether the PMA requires Schindler to
maintain and repair the finger guard, and that certain evidence indicates that the finger
guard was in a defective condition at the time of Appellants’ son’s injury.
A party is entitled to summary judgment only if ―there is no genuine dispute as to
any material fact and the [moving party] is entitled to judgment as a matter of law.‖ FED.
R. CIV. P. 56(a). A fact is material if it ―could affect the outcome of the proceeding, and
10
a dispute about a material fact is genuine if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving party.‖ Roth v. Norfalco LLC, 651
F.3d 367, 373 (3d Cir. 2011) (internal quotation marks omitted). But the nonmoving
party may not ―rely merely upon bare assertions, conclusory allegations or suspicions.‖
Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).
Appellants’ negligent maintenance claim is governed by Pennsylvania law. Erie
R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As a result, in order to survive summary
judgment, Appellants must have set forth facts that demonstrate: ―(1) a duty of care; (2)
the breach of the duty; (3) a causal connection between the conduct and the resulting
injury; and (4) actual loss or damage.‖ Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264,
1272–73 (Pa. 2006). ―Generally a party to a contract does not become liable for a breach
thereof to one who is not a party thereto.‖ Evans v. Otis Elevator Co., 168 A.2d 573, 575
(Pa. 1961). But if a party to a contract ―has undertaken to render services to another
which he should recognize as necessary for the protection of a third person,‖ a duty of
care to those foreseeable third parties arises. Cantwell v. Allegheny Cnty., 483 A.2d
1350, 1353–54 (Pa. 1984) (internal quotation marks omitted). See also Otis Elevator,
168 A.2d at 575–76 (―[A] party to a contract by the very nature of his contractual
undertaking may place himself in such a position that the law will impose upon him a
duty to perform his contractual undertaking in such manner that third persons—strangers
to the contract—will not be injured thereby.‖); RESTATEMENT (SECOND) OF TORTS §
324A (1965). This does not mean that ―the service provider must assume additional
duties . . . above and beyond the initial undertaking. Rather, it merely prescribes for
11
reasonable care to be taken vis-à-vis the original undertaking and establishes liability to
certain third-parties where such care is lacking.‖ Seebold v. Prison Health Servs., Inc.,
57 A.3d 1232, 1244–45 (Pa. 2012).
We agree that Appellants have presented no evidence from which a reasonable
jury could conclude that Schindler caused the Furlans’ son’s injury. Even assuming the
PMA created an affirmative obligation on the part of Schindler to maintain and repair the
finger guard, Appellants have presented no evidence to support a reasonable jury finding
that the finger guard at issue was damaged or in need of maintenance. The existence of
the photographs and the occurrence of the accident are not enough to give rise to an
inference of causation, Harvilla v. Delcamp, 555 A.2d 763, 764 (Pa. 1989) (―[A] plaintiff
cannot recover upon proof of the mere happening of an . . . accident.‖), especially where
there has been no evidence presented by Appellants that goes to prove the finger guard,
as originally designed and installed, would have prevented the son’s injury. (See App. at
A353 (―finger guards only guard the entrance to the balustrade and do not guarantee that
an entrapment will not occur‖).) See also supra note 7.
As a result, because Appellants have not presented facts to establish Schindler’s
allegedly negligent maintenance was a cause of the accident at issue, we conclude that
the District Court was correct in granting summary judgment in Schindler’s favor. We
will affirm the entry of summary judgment.
IV.
For the reasons set forth, we will affirm the Judgment of the District Court.
12