                                                               NOT PRECEDENTIAL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.



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