                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2002

Scrofani v. Stihl Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3773




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                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          No. 01-3773
                           __________

                        JOSEPH SCROFANI;
                    CAROL SCROFANI, per quod

                               v.

                STIHL INCORPORATED, its agents,
                   servants and/or employees;
                  STIHL NORTHEAST, its agents,
                   servants and/or employees;
                    YORK-HUNTER, its agents,
                   servants and/or employees;
              ABC CORPORATIONS 1-10, their agents,
                   employees and/or servants;
                  JOHN DOES, 1-25, (Said names
                 being fictitious representing
                 principals, officers, agents,
                   and employees of defendant
                    corporations), jointly,
                 severally and/or individually

                          YORK-HUNTER,

                        Third-Party Plaintiff

                                v.

               BENFATTO CONSTRUCTION CORPORATION,

                        Third-Party Defendant

                          Joseph Scrofani;
                           Carol Scrofani,
                                                Appellants
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                   D.C. Civil No. 99-cv-04711
      Magistrate Judge: The Honorable Stanley R. Chesler
                           __________

                      Argued July 22, 2002
                           __________

      Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges

                (Opinion Filed: August 6, 2002)
                          ____________


Richard S. Mazawey, Esquire (Argued)
Suite 211
1135 Broad Street
Clifton, NJ 07013

Attorney for Appellant


James H. Walsh, Esquire (Argued)
McGuireWoods
901 East Cary Street
One James Center
Richmond, VA 23219
     -and
Robert A. Sachs, Esquire
Monte, Sachs & Borowsky
800 The Plaza
P.O. Box 255
Sea Girt, NJ 08750

Attorneys for Appellees


                          ____________

                            OPINION
                          ____________

BARRY, Circuit Judge
     Plaintiffs Joseph and Carol Scrofani brought suit against Stihl, Inc. and Stihl
Northeast (collectively "Stihl"), in addition to York-Hunter, Inc., for various torts under
New Jersey law. The suit arose from burn injuries that Mr. Scrofani sustained at a York-
Hunter construction site on August 4, 1997, while he was using a gasoline-powered saw
that was manufactured and sold by Stihl. The Court granted Stihl’s motion to exclude as
unreliable the testimony of plaintiffs’ expert witness. It also denied plaintiffs’ motion
pursuant to Federal Rule of Evidence 104 for a Daubert hearing to assess their expert’s
qualifications. The Court then granted Stihl and York-Hunter’s motions for summary
judgment. Plaintiffs filed a timely notice of appeal, but subsequently settled with York-
Hunter. They now challenge the exclusion of the testimony of their expert, the denial of
a Daubert hearing, and the grant of summary judgment to Stihl. We have jurisdiction
pursuant to 28 U.S.C. 1291.    For the reasons that follow, we will affirm.
     Because the parties are familiar with the underlying facts, we need not recite them
in detail here. Plaintiffs argue that Stihl is liable for the manufacturing and sale of the
Stihl Model TS-350 cut-off saw ("TS-350 saw") in or around 1994. Specifically, they
assert that Mr. Scrofani was injured by the TS-350 saw because it (1) was defectively
designed and (2) contained inadequate warnings. To prove these theories of liability,
plaintiffs relied almost exclusively on the opinions of expert witness Russell Fote, which,
as noted, were excluded from evidence. The Supreme Court has emphasized that "the
trial judge must have considerable leeway in deciding . . . whether particular expert
testimony is reliable." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1997).
We review the Court’s decision to exclude expert testimony for abuse of discretion.
United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001).
     To be admissible, expert testimony must "not only [be] relevant, but reliable."
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Even if a
witness is qualified as an expert, he or she may only testify if:
          (1) the testimony is based upon sufficient facts or data, (2) the testimony is
     the product of reliable principles and methods, and (3) the witness has
     applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. Here, it is abundantly clear that what Fote had to say as to both the
defective design and inadequate warning claims was not reliable and that the Court did
not abuse its discretion in excluding Fote’s testimony. As the Court observed with
respect to design defect, Fote’s opinions were not based upon sufficient data, nor were
they the product of reliable methods applied to the facts in a reliable manner; indeed,
Fote "employed absolutely no methodology at all," merely setting forth "a series of
unsubstantiated opinions." As for the failure to warn, the Court concluded that Forte’s
report "gave no clue" as to how he reached the "bald conclusion" he reached and "more
than suggests" that he did not even read the warnings which accompany the TS-350 saw
which, in any event, were the same warnings Fote described as necessary.
     Moving to the next issue, plaintiffs claim that a Daubert hearing would have
established Fote’s qualifications as an expert. Even if the Court had concluded that Fote
was a qualified expert, however, and it did not find that he was not, it would have been
proper to exclude the evidence he proffered because, as noted above, he failed to base his
conclusions on sufficient data and his methodologies were either nonexistent or wholly
unreliable. Accordingly, the Court did not err in refusing to grant plaintiffs’ request for a
Daubert hearing. Oddi v. Ford Motor Co., 234 F.3d 136, 153-54 (3d Cir. 2000).
     Finally, plaintiffs argue that the Court erred when it granted summary judgment in
favor of Stihl on the defective design and inadequate warning claims. We exercise
plenary review over a grant of summary judgment. Pacitti v. Macy’s, 193 F.3d 766, 772
(3d Cir. 1999). Under the New Jersey Products Liability Act, a manufacturer or seller
may be held strictly liable for harms caused by a product where (1) the product suffered a
manufacturing defect, (2) the product was defectively designed, or (3) the product
warnings were inadequate. N.J.S.A. 2A:58C-2; Roberts v. Rich Foods, Inc., 139 N.J.
365, 375 (1995). To establish liability, a plaintiff must prove by a "preponderance of the
evidence that the product causing the harm was not reasonably fit, suitable or safe for its
intended purpose." N.J.S.A. 2A:58C-2.
     Plaintiffs assert that the fuel cap design of the TS-350 saw was defective, causing
fuel leakage which combusted and seriously burned Mr. Scrofani. To establish a design
defect claim, a plaintiff "must prove either that the product’s risks outweighed its utility
or that the product could have been designed in an alternative manner so as to minimize
or eliminate the risk of harm." Lewis v. American Cyanamid Co., 155 N.J. 544, 570
(1998). Plaintiffs must also prove that such an alternative design was "practical and
feasible." Id. at 571. Plaintiffs utterly failed to meet their burden, as the Court correctl
found, and do not seriously press this claim before us.
     Summary judgment for Stihl was also proper on plaintiffs’ inadequate warning
claim. "A duty to warn is consonant with a manufacturer’s broader duty to place in the
stream of commerce only products that are reasonably safe." Coffman v. Keene Corp.,
133 N.J. 581, 598 (1993). To establish his claim, Mr. Scrofani was required not only to
prove that the warnings were inadequate, but that they were the proximate cause of his
injury. When evaluating causation, it is presumed that an injured party "would have
followed an adequate warning had one been provided." Id. at 603. The defendant may
rebut this presumption, however, by producing "evidence that such a warning would not
have been heeded." Id.
     Even if the existing TS-350 saw warnings were inadequate, Stihl submitted
ample evidence to rebut the presumption that Mr. Scrofani would have heeded an
adequate warning. Scrofani testified that, at the moment of his accident, he was well
aware of the risks of using the TS-350 saw and that he was very familiar with the
information in the product manual. Nevertheless, he acted in direct contravention of
numerous warnings contained therein. This disregard of existing warnings demonstrates
that Scrofani would have ignored the most perfect of warnings. "Evidence that a
plaintiff would have disregarded an adequate warning . . . tend[s] to demonstrate that the
plaintiff’s conduct, rather than the absence of a warning, was the cause in fact of the
resultant injury." Coffman, 133 N.J. at 604. Because plaintiffs submitted no evidence
indicating that a different warning would have prevented this accident, the grant of
summary judgment in favor of Stihl was proper.
     For the foregoing reasons, we will affirm.

TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion.

                                          /s/ Maryanne Trump Barry
                               Circuit Judge

           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                    No. 01-3773


                  JOSEPH SCROFANI;
              CAROL SCROFANI, per quod

                         v.

          STIHL INCORPORATED, its agents,
             servants and/or employees;
            STIHL NORTHEAST, its agents,
             servants and/or employees;
              YORK-HUNTER, its agents,
             servants and/or employees;
        ABC CORPORATIONS 1-10, their agents,
             employees and/or servants;
            JOHN DOES, 1-25, (Said names
           being fictitious representing
           principals, officers, agents,
             and employees of defendant
              corporations), jointly,
           severally and/or individually

                    YORK-HUNTER,

                  Third-Party Plaintiff

                          v.

         BENFATTO CONSTRUCTION CORPORATION,

                  Third-Party Defendant

                    Joseph Scrofani;
                     Carol Scrofani,
                                           Appellants


                     __________

  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF NEW JERSEY
             D.C. Civil No. 99-cv-04711
Magistrate Judge: The Honorable Stanley R. Chesler
                     __________

                Argued July 22, 2002


Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges


                    ____________
                            JUDGMENT
                          ____________


     This cause came to be heard on the record from the United States District Court
for the District of New Jersey and was argued on July 22, 2002.
     After consideration of all contentions raised by the appellants, it is
     ADJUDGED and ORDERED that the denial of a Daubert hearing and the grant of
summary judgment in favor of Stihl be and hereby are affirmed. Costs taxed against
appellants. All in accordance with the Opinion of the Court.
                                   ATTEST:



                                   Acting Clerk


Dated: 6 August 2002
