United States District Court, D. Maine
ORDER ON DAUBERT MOTION TO EXCLUDE EXPERT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
personal injury and product liability action, Yates-American
Machine Company filed a Daubert motion seeking to
exclude the proposed testimony of Plaintiff's experts.
The Court denies the motion, concluding that any inadequacies
in the experts' proposed testimony do not require
wholesale exclusion and are best tested through the
traditional tools of trial work: “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
14, 2013, Terrance Wyman filed a complaint against
Yates-American Machine Company (Yates-American) and DK-Spec
Inc. in the Somerset County Superior Court alleging one count
of negligence and one count of strict liability against each
of the Defendants. Notice of Removal Attach. 1
Compl. (ECF No. 1) (Compl.). On August 6,
2013, Yates-American removed the case to federal court.
Id. On July 14, 2015, the Court held a Rule 56
Pre-Filing Conference and ordered Yates-American to notify
the Court if a Daubert hearing was necessary.
Min. Entry (ECF No. 85).
31, 2015, Yates-American requested a Daubert hearing
on Mr. Wyman's experts, Paul Cyr and John Orlowski.
Yates-American's Letter Req. for Daubert
Hr'g (ECF No. 88). On October 15, 2015, at the
Court's request, Yates-American summarized its
preliminary objections to the proposed testimony of Mr.
Orlowski and Mr. Cyr. Yates American Machine Co.
Inc.'s Prelim. Daubert Objs. to the Proposed Test. of
John Orlowski and Paul Cyr (ECF No. 104) (Def.'s
Prelim. Objs.). Mr. Wyman responded to the preliminary
objections on October 23, 2015. Pl.'s Resp. to
Def.'s Prelim. Daubert Objs. to the Proposed Test. of
John Orlowski and Paul Cyr (ECF No. 111) (Pl.'s
Resp.). The Court held an evidentiary hearing that began
on October 26, 2015 and continued on December 16 and 17,
2015. Min. Entry (ECF No. 114); Min. Entry
(ECF No. 119); Min. Entry (ECF No. 121).
February 17, 2016, Yates-American supplemented its
preliminary objections and moved to exclude the experts'
testimony. Yates American's Suppl. Br. to Exclude
Pl.'s Experts (ECF No. 133) (Def.'s
Mot.). Mr. Wyman opposed the motion on February 26,
2016. Pl.'s Resp. to Def.'s Suppl. Br. to Exclude
Pl.'s Experts (ECF No. 138) (Pl.'s
Opp'n). Yates-American replied on March 11, 2016.
Yates American Machine Company's Reply to
Pl.'s Opp'n to Yates American Machine
Company's Daubert Challenges for Paul Cyr
(ECF No. 139) (Def.'s Reply).
Wyman designated Paul A. Cyr as an expert. Mr. Cyr spent two
years at Northeastern University's College of Engineering
and is a Licensed Stationary Engineer in the state of Maine.
Pl.'s Resp. Attach. 2 Resume of Paul A.
Cyr at 4 (Cyr Resume). He spent over 22 years
working for OSHA before retiring and developing an expert
consulting business. Id. at 3. During his time at
OSHA, Mr. Cyr conducted physical inspections of workplaces
for OSHA compliance and was considered an expert on logging,
sawmill, paper mill, and arborist safety and health issues.
Id. at 2. Mr. Cyr has participated in, as well as
developed and delivered, numerous training and safety
courses. Id. at 4, 7-8.
prepared an initial report for this case on January 13, 2014.
Pl.'s Resp. Attach. 3 Paul Cyr Report
(Jan. 13, 2014) (Cyr Report). In this report, Mr.
Cyr opined that 1) the Yates-American planer should have and
could have feasibly been guarded; 2) the lack of guard caused
Mr. Wyman's injuries; 3) the planer did not meet industry
standards; and 4) Yates-American and Industrie Guerrete knew,
or should have known, that the planer did not meet industry
standards. Id. at 2-3. Mr. Cyr supplemented this
report on May 14, 2015 in response to one of
Yates-American's expert reports. Pl.'s Resp.
Attach. 5 Suppl. Report of Paul A. Cyr (May 14,
2015) (Cyr Suppl. Report). In this report, Mr. Cyr
opines that, contrary to Defendant's expert's
conclusions, Yates-American did in fact manufacture the base
and hood on the planer and that any changes to the planer are
“simply a reflection of advances in systems and
technology.” Id. at 2-3. In addition to
testifying about the information contained in these reports,
Mr. Cyr plans to rebut the opinions of Yates-American's
experts. Pl.'s Resp. Attach. 4 Pl.'s
Suppl. of Orlowski and Cyr Expert Ops. and Rebuttal of
Def.'s Expert Ops. (Pl.'s Suppl. of
Wyman also designated John M. Orlowski as an expert in this
case. Mr. Orlowski is a Licensed Professional Engineer in the
states of Maine, Massachusetts, and New York. Aff. of
John Orlowski (ECF No. 112) (Orlowski Aff.)
Attach. 1 John M. Orlowski Curriculum Vitae at 1
(Orlowski Resume). He has over 45 years of drafting,
design engineering, and consulting experience and he
co-authored a chapter in “Products Liability”
entitled Engineering Aspects of Guarding of Machinery and
Equipment. Id. at 2-4.
Orlowski prepared a report for this case on January 13, 2014.
Orlowski Aff. Attach. 2 John Orlowski
Report (Jan. 13, 2014) (Orlowski Report). He
also prepared a technical report on May 2, 2014. Id.
Attach. 3 John Orlowski Technical Report (May 2,
2014) (Orlowski Technical Report). In these reports,
Mr. Orlowski states that, in his opinion: 1) the
Yates-American planer was defective and unreasonably
dangerous because it lacked guards, emergency stop controls,
and suitable warnings; 2) Yates-American and Industrie
Guerette did not act as reasonable manufacturers by failing
to adequately guard the planer and warn of such conditions;
and 3) the condition of the planer caused Mr. Wyman's
injuries. Orlowski Report at 3; Orlowski
Technical Report at 9. In addition to testifying about
the information contained in these reports, Mr. Orlowski
plans to rebut the opinions of Yates-American's experts.
Pl.'s Suppl. of Experts' Ops. at 1.
Yates-American's Preliminary Daubert Objections
to the Court's request, Yates-American summarized its
challenges to the proposed opinions and testimony of Mr.
Wyman's experts, Mr. Cyr and Mr. Orlowski. Def.'s
Prelim. Objs. at 1. Yates-American first objects to Mr.
Cyr's proposed testimony that Yates-American
manufactured, designed, and sold the planer and parts
involved in Mr. Wyman's accident. Id. at 2.
Yates-American provides contrary testimony from the
company's owner that the planer is not a Yates-American
planer. Id. Additionally, Yates-American states that
Mr. Cyr admitted that he has no knowledge or experience with
the manufacturing process of Yates-American planers, nor any
knowledge of the aftermarket parts manufacturing industry,
and that he has no information about the particular parts
used for the planer in this accident. Id. at 2-3.
Yates-American claims that Mr. Cyr's lack of knowledge in
these areas is significant because “Industrie Guerette
was in the business of manufacturing Yates planers and Yates
parts for sale in the aftermarket industry.”
Id. at 3. It then cites testimony by DK-Spec
Inc.'s president in which he testified “to the
copycat nature in the parts manufacturing industry.”
also objects to Mr. Cyr's proposed testimony “that
the planer involved in Mr. Wyman's accident was defective
and unreasonably dangerous because it did not have a guard
over the outfeed rolls, and that the failure to provide a
guard in 1973 caused Mr. Wyman's injury.”
Id. at 4. According to Yates-American, Mr. Cyr
admitted that he has no information or evidence as to whether
a guard was installed on the planer. Id. It claims
that this testimony is significant because Yates-American
says it “sold the very guard that Cyr claims should
have been provided on the planer to the owner of the Yates
A-20-12 planer serial number B28984.” Id.
objects to Mr. Cyr's general testimony on these issues
pursuant to Federal Rule of Evidence 702. Id. First,
it argues that Mr. Cyr is not qualified to provide expert
testimony on whether Yates-American designed, manufactured
and sold the planer or any of its components. Id.
Next, Yates-American argues that Mr. Cyr's testimony will
not assist the jury in understanding the evidence or in
making factual determinations on this issue or on whether
there was ever a guard installed on the planer. Id.
Additionally, Yates-American argues that Mr. Cyr's
proposed testimony is not based on sufficient facts or data,
his testimony is not the product of reliable principles and
methods, and that Mr. Cyr has not reliably applied the
principles and methods to the facts of the case. Id.
specifically, Yates-American makes Rule 702 objections to
nineteen facts or opinions made by Mr. Cyr in his reports and
1. that there was no indication that a guard was ever
installed for the out root feed rolls of the Yates American
planer sold in 1973;
2. there was no indication that warnings or instructions had
ever been placed on the Yates American planer sold in 1973;
3. the lack of a guard sold with the Yates American planer in
1973 resulted in the accident planer being unreasonably
dangerous and was the cause of Mr. Wyman's injury;
4. if properly guarded Mr. Wyman's hand could not have
been pulled into the outfeed rolls and his injury could not
and would not have occurred;
5. the guard would not have affected the operation of the
6. knowledge regarding the guarding of nip points such as the
one on the planer causing Mr. Wyman's injury has been
widely known and published since the early 1900s and Yates
American knew or should have known of such guarding
7. the Yates American planer did not meet the standard of
care for manufacturers at the time of manufacture because of
its lack of guarding the nip point and moving parts of the
8. the lack of a guard is a violation of OSHA standards;
9. the name "American" appears to have been ground
off casting on the base of the planer at Stratton lumber;
10. the letter "B" was in front of the serial
number 28984 and was partially obliterated;
11. the measurements of the outfeed rolls stands and the
outfeed rolls match Yates American drawings;
12. the right and left outfeed roll stands were manufactured
by Yates American and the right outfeed roll stand has been
modified, and the right and left in feed roll stands were
manufactured by Yates American;
13. the hood observed by Mr. Cyr on the accident planer was
identical to other hoods on other Yates American planers;
14. a Yates American 1973 or 1989 guard probably would have
prevented several other hand injuries Mr. Borghi admitted ...