                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2000

Oddi v. Ford Motor Co.
Precedential or Non-Precedential:

Docket 99-3406




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Filed October 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3406

DAVID ODDI; ERIN ODDI, His Wife

v.

FORD MOTOR COMPANY; GRUMMAN
ALLIED INDUSTRIES INC.; GRUMMAN
OLSON BODIES, INC.; OLSON BODIES, INC.

v.

COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,

       Third Party Defendant

DAVID ODDI,

       Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
Civil Action No. 95-cv-01341
District Judge: Hon. Robert J. Cindrich

Argued: May 9, 2000

Before: GREENBERG and McKEE, Circuit Judges,
and GARTH, Senior Circuit Judge

(Opinion filed: October 13, 2000)
       PAUL A. TERSHEL, ESQ. (Argued)
       MARY CHMURA CONN, ESQ.
       Tershel & Associates
       Helena Professional Building
       55 South Main Street
       Washington, PA 15301
       Attorneys for Appellant

       JOHN E. WALL, ESQ. (Argued)
       MICHAEL F. NERONE, ESQ.
       Dickie, McCamey & Chilcote, P.C.
       Two PPG Place, Suite 400
       Pittsburgh, PA 15222-5402
       Attorneys for Appellee,
       Ford Motor Company

       JOHN H. WILLIAMS, ESQ. (Argued)
       Gorr, Moser, Dell & Loughney
       437 Grant Street
       1300 Frick Building
       Pittsburgh, PA 15219
       Attorneys for Appellee,
       Grumman Allied Ind., et al.

OPINION OF THE COURT

McKEE, Circuit Judge.

David Oddi was catastrophically injured in a one-vehicle
accident when the truck he was driving struck a guardrail
and a bridge abutment. Thereafter, he filed two separate
product liability actions in state court. He sued Ford Motor
Company, which designed and manufactured the chassis of
the truck, and he brought a separate action against
Grumman Allied Industries, Inc. (then known as Olson
Bodies, Inc), which designed and manufactured thefinished
truck. Ford and Grumman removed the actions to the
district court where they were consolidated.1 Ford and
_________________________________________________________________

1. Jurisdiction in the district court was premised upon diversity of
citizenship. 28 U. S. C. S 1332. Oddi is a citizen of Pennsylvania. Ford
is a Delaware corporation and Grumman is a New York corporation.

                               2
Grumman eventually moved for summary judgment based
upon their contention that Oddi could not establish a prima
facie case because his proposed expert testimony failed to
satisfy the requirements of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579 (1993). The district
court agreed and granted summary judgment in favor of
Ford and Grumman, and against Oddi. The district court
subsequently denied Oddi's motion for reconsideration, and
this appeal followed. For the reasons that follow, we will
affirm.

I. FACTS AND PROCEDURAL HISTORY.

On June 21, 1993, Oddi was driving a bread truck owned
and maintained by Continental Baking Company. He was
proceeding northbound at exit 14 of Interstate 79 near
Pittsburgh, Pennsylvania, at approximately 55 to 60 miles
an hour when the truck struck a guardrail and bridge
abutment. Oddi's legs were crushed so badly by the force of
the accident that they both had to be amputated. Oddi's left
arm was also permanently injured.

The truck was a 1976 special order Ford M-5000
Stripped Chassis that Continental had ordered through a
Ford dealership for use as a bread delivery truck. When the
truck left Ford's possession and control it was comprised
only of basic component parts such as frame rails, axles,
engine, drive train, wheels and a front bumper. Continental
took delivery of the Stripped Chassis and delivered it to
Grumman for the design and manufacture of the finished
vehicle. Grumman designed and manufactured all
necessary aspects of the vehicle pursuant to Continental's
specifications. This included modifications to the occupant
compartment ("cab") and floor boards. Continental had
used the truck as a bread delivery truck from 1976 through
1993, and it had been driven for hundreds of thousands of
miles in that capacity before this accident occurred.2

The suits that Oddi filed after his accident asserted
_________________________________________________________________

2. It is impossible to determine exactly how many miles it had been
driven because the maintenance records are missing, and the odometer
had turned over an unknown number of times.

                               3
claims against Ford and Grumman under theories of strict
liability, negligence, breach of warranty and failure to warn.3
Oddi claimed Ford's defective design of the front bumper of
the bread truck allowed the underside of the truck to ride
up or "ramp" onto the guardrail and strike the bridge
abutment.4 He also claimed that after the truck ramped
onto the guardrail, the left front wheel of the truck hooked
over the rail preventing him from steering away from the
bridge abutment. He alleged that defects in the cab
(designed and manufactured by Grumman) had caused the
flooring to bend upon impact with the bridge abutment and
apply such force as to crush both his legs. He also alleged
that the truck rolled over and down an adjacent
embankment after it struck the bridge abutment.

Ford denied any design defects and also denied that the
truck ramped the guardrail. According to Ford, the truck
simply struck the guardrail and rolled over it. Similarly,
Grumman denied that the flooring was deficient or that it
caused any injury at all.5

Oddi retained two experts to support his contention that
his injuries were caused by defects in the manufacture and
design of the truck. John N. Noettl, an engineer, was
retained to testify about the defective design, and Leon
Kazarian, a bio-mechanist, was retained to testify about the
process by which Oddi received his injuries.

After deposing both of Oddi's experts, Ford and
Grumman moved for summary judgment. Ford argued that
all of Oddi's claims should be dismissed because Oddi's
proposed expert testimony could not survive the threshold
inquiry required under Daubert v. Merrell Dow
_________________________________________________________________

3. Oddi also asserted negligence claims against the Commonwealth of
Pennsylvania, Department of Transportation ("PennDOT") based upon
the design of the guardrails and the bridge abutment. However, the
record does not disclose the status of that action.

4. Oddi also asserted steering defects against Ford. However, after
discovery, he dismissed those claims.

5. Ford and Grumman also filed third-party complaints against PennDOT
in the removed action in district court. However, they subsequently
voluntarily dismissed that action. Consequently, PennDOT was no longer
a party in the district court action and is not a party in this appeal.

                                4
Pharmaceuticals, Inc., 509 U. S. 579 (1993), and, therefore,
Oddi could not establish a prima facie case. Grumman did
not initially make a specific challenge under Daubert.
Instead, Grumman initially argued only that Oddi's
evidence was either inadmissible or failed to satisfy Oddi's
burden of proof.

Oddi responded to the summary judgment motions by
filing a brief in opposition, an affidavit of Noettl, and
excerpts of Noettl's deposition testimony. Oddi did not
request an evidentiary hearing or oral argument, nor did he
submit anything else in response to Ford's Daubert
challenge.

After reviewing Oddi's submissions in opposition to the
summary judgment motions, Grumman filed a reply brief in
which it argued that Oddi still could not meet his burden
of showing that the truck was not crashworthy. Grumman
also challenged Oddi's experts under Daubert. Oddi
responded by filing a motion to strike Grumman's reply
brief claiming that the district court had not granted leave
to Grumman to file it. In the alternative, Oddi sought leave
to submit opposing affidavits if needed.

On March 31, 1999, the district court entered a
Memorandum Opinion in which it ruled that Oddi's experts
did not meet Daubert's admissibility standards. Absent the
testimony of those experts, Oddi could not establish a
prima facie case of liability, and the district court therefore
granted summary judgment in favor of Ford and Grumman.

Oddi filed a motion for reconsideration in which his
major argument was that the district court should have
held a hearing on the Daubert challenge before granting
summary judgment. However, the district court disagreed
and on September 2, 1999, denied his motion for
reconsideration. Oddi then sent a letter to the district court
enclosing a copy of our August 2, 1999 decision in Padillas
v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi
argued that Padillas required that an evidentiary hearing be
held so that he could meet the defendants' Daubert
challenges. However, the district court disagreed and issued
a supplemental Memorandum Opinion in which it held that
Oddi was not entitled to an evidentiary hearing.

                               5
This appeal followed.

II. THEORIES OF LIABILITY.

Although Oddi based his suits upon several different
theories of liability, he only appeals the district court's
grant of summary judgment on his crashworthiness and
negligent failure to test claims. We will begin our inquiry by
discussing each of those theories.

A. Crashworthiness.

"The term crashworthiness means the protection that a
motor vehicle affords its passenger against personal injury
or death as a result of a motor vehicle accident." Kuptez v.
Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. Super. 1994).
The doctrine "imposes liability on the manufacturer not for
causing the accident, but rather for failing to minimize the
injuries or even increasing the severity of the injuries
sustained in an accident brought about by a cause other
than the alleged defect." Habecker v. Clark Equipment Co.,
36 F.3d 278, 283 (3d Cir. 1994)("Habecker III"). "[T]he
crashworthiness doctrine permits a plaintiff to recover for
enhanced injuries, i. e., only for those injuries he can prove
he would not have sustained if he had been riding in a
crashworthy vehicle." Carrasquilla v. Mazda Motor Corp.,
963 F. Supp. 455, 458 (M. D. Pa. 1997)(citations and
internal quotations omitted). "[I]f enhanced injuries cannot
be shown, then no liability exists as to the manufacturer."
Id.

Crashworthiness is a subset of products liability law.6
Although the Pennsylvania Supreme Court has not yet
adopted the crashworthiness doctrine for products liability
cases,7 we have predicted that it would do so in an
appropriate case. See Habecker v. Clark Equipment Co., 942
_________________________________________________________________

6. "In a typical products liability action in Pennsylvania,   a plaintiff
must
show: (1) the product was defective; (2) the defect existed   while the
product was in the control of the manufacturer; and (3) the   defect was
the proximate cause of the injuries." Habecker III, 36 F.3d   at 284.

7. Because this is a diversity case, Pennsylvania products liability law
applies. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 413 (3d Cir. 1999).

                               6
F.2d 210 (3d Cir. 1991)("Habecker II").8 To establish a
cause of action on a theory of crashworthiness, a plaintiff
must show: (1) the design9 of the product was defective; (2)
an alternative, safer design that was practical existed; (3)
what injuries, if any, the plaintiff would have received had
the alternative design been used; and (4) the defective
design caused or exacerbated specific injuries. 10 Barker v.
Deere and Co., 60 F.3d 158, 161 n.3 (3d Cir. 1995)(citation
omitted).

B. Negligent Failure to Test.

Oddi alleged that Ford and Grumman were negligent for
"[f]ailing to do adequate, necessary and proper testing of
the vehicle prior to the sale which would have revealed the
dangerous condition of the product." Complaint, at P 4r.
Oddi refers to this theory of recovery as the tort of
"negligent failure to test." Oddi's Br. at 26. He claims that
its elements are as set forth in 1836 Callowhill Street v.
Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993).
Oddi argues that under 1836 Callowhill Street he can
recover under this theory if he establishes that: (1) the
manufacturer has a duty to test its product; (2) the
manufacturer breached that duty, i. e., the manufacturer
did not test; and (3) the breach or the failure to test was the
proximate cause of the plaintiff 's injury. Oddi's Br. at 26.

In 1836 Callowhill, the court made several assumptions
for purposes of ruling on a motion for summary judgment.
_________________________________________________________________

8. The Pennsylvania Superior Court accepted the crashworthiness
doctrine in 1994. Kupetz v. Deere & Co., Inc. , 644 A.2d 1213 (Pa. Super.
1994). The Pennsylvania Supreme Court has subsequently, referred to
the crashworthiness doctrine, but has not yet officially adopted it. See
Schroeder v. Commonwealth of Pennsylvania, Department of
Transportation, 710 A.2d 23, 28 n.8 (Pa. 1998).

9. We have noted that "[t]he theory of products liability is applied to
three types of defects: design, manufacturing and marketing (warnings).
The crashworthiness doctrine implicates the overtures of design defects."
Habecker III, 36 F.3d at 283 n.6.

10. It has been suggested that the third and fourth elements of the
crashworthiness doctrine are corollaries. Huddell v. Levin, 537 F.2d 726,
738 (3d Cir. 1976).

                                7
The court assumed that defendant's product was defective,
that the defect caused the alleged damage, and that the
defendant had a duty to adequately test the defective
product to discover the defect. Nevertheless, the court
granted summary judgment to the defendant as to
plaintiff 's negligence claim. The court concluded that
plaintiff did not "offer[ ] sufficient evidence of a breach of
that duty [to] create a genuine dispute of fact." Id. at 465.
Consequently, although the court stated, that "[n]egligent
failure to test is cognizable as a common law negligence
theory," 819 F. Supp. at 464-65, that decision cannot fairly
be said to support the proposition that a manufacturer has
a general duty to test a product to determine if it is
defective.

Therefore, even if 1836 Callowhill were precedential and
correctly stated the law of Pennsylvania, we would still be
compelled to conclude that Oddi has cited no authority that
establishes the principle that a manufacturer has a general
duty to test its product. We have found no authority to
support Oddi's contention that Pennsylvania recognizes an
independent tort for "negligent failure to test," and Oddi
has offered none.

Rather, it appears that Oddi's "negligent failure to test"
claim is, at bottom, nothing more than a routine products
liability case based on negligence, and that the claimed
negligence is the failure to test. Under Pennsylvania law, in
order for an injured party to establish a cause of action
against a manufacturer based upon the latter's breach of a
duty, "the plaintiff must prove, not only that the product
was defective and that the defect caused his[/her] injury,
but in addition, [the plaintiff must prove] that in
manufacturing or supplying the product the defendant
failed to exercise due care." Dambacher v. Malis, 485 A.2d
408, 424 (Pa. Super. 1984). Thus, Oddi must first establish
that the vehicle was defective.

Thus, whether we view Oddi's theory as crashworthiness
or negligence arising from a failure to test, he must
establish a defect in the design of the truck in order to
recover, and he must then show that that defect caused his
injuries. As noted above, he attempted to do this through
the proffered expert testimony of John N. Noettl and Leon

                                8
Kazarian, but the district court refused to admit their
expert testimony.

III. STANDARDS FOR ADMISSIBILITY OF
       EXPERT TESTIMONY.

Federal Rule of Evidence 702 states:

       If scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence
       or to determine a fact in issue, a witness qualified as
       an expert by knowledge skill, experience, training, or
       education, may testify thereto in the form of an opinion
       or otherwise.

The Supreme Court amplified the operation and scope of
Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
supra. There, the Court held that scientific knowledge
requires

       an inference or assertion . . . derived by the scientific
       method. Proposed testimony must be supported by
       appropriate validation -- i.e., "good grounds," based on
       what is known. In short, the requirement that an
       expert's testimony pertain to "scientific knowledge"
       establishes a standard of evidentiary reliability.

Id. at 590. Rule 702 thus "clearly contemplates some
degree of regulation of the subjects about which an expert
may testify." Id. at 589. Consequently, the Court
established a "gatekeeping role for the [trial] judge." Id. at
597.

       [T]he trial judge must determine at the outset,
       pursuant to Rule 104(a),11 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. This entails a preliminary assessment
       of whether the reasoning or methodology underlying
       the testimony is scientifically valid and of whether that
_________________________________________________________________

11. Fed. R. Evid. 104(a) provides: "Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege,
or
the admissibility of evidence shall be determined by the court, subject to
the provisions of subsection (b)[pertaining to conditional admissions].

                               9
       reasoning or methodology properly can be applied to
       the facts in issue.

Id. at 592-93. The proponent must satisfy this burden "by
a preponderance of proof." Id. at 593 n.10.

Although "[m]any factors will bear on the inquiry," the
Court has set out some "general observations," Id. at 593,
that serve as guideposts in determining if proffered expert
testimony is sufficiently relevant and reliable to be
admissible.12 First, "a key question to be answered in
determining whether a theory or technique is scientific
knowledge that will assist the trier of fact will be whether
it can be (and has been) tested." Id. Second, the court
should consider "whether the theory or technique has been
subjected to peer review and publication." Id. Publication,
which is an element of peer review, "is not a sine qua non
of admissibility: it does not equate with reliability." Id. It
may, however, suggest "good science." Id. "The fact of
publication (or lack thereof) in a peer reviewed journal will
be a relevant, though not dispositive, consideration in
assessing the scientific validity of a particular technique or
methodology upon which an opinion is premised." Id. at
594. Third, "in the case of a particular scientific technique,
the court ordinarily should consider the known or potential
rate of error, and the existence and maintenance of
standards controlling the technique's operation." Id. Fourth,
and finally, "general acceptance" can have bearing on the
inquiry. Id. "Widespread acceptance can be an important
factor in ruling particular evidence admissible, and a
known technique which has been able to attract only
minimal support with the community may properly be
viewed with skepticism." Id. However,"general acceptance"
is "not a necessary precondition to the admissibility of
scientific evidence." Id. at 597. The Court also emphasized
that the "inquiry envisioned by Rule 702 is . . . a flexible
_________________________________________________________________

12. Obviously, evidence must first be relevant to be admissible. Relevant
evidence is evidence that helps "the trier of fact to understand the
evidence or to determine a fact in issue." Id. at 591. This consideration
of relevance has been described as one of "fit" or "helpfulness." It
requires "a valid scientific connection to the pertinent inquiry as a
precondition to admissibility." Daubert, at 591-92.

                               10
one," and noted that the "focus . . . must be solely on
principles and methodology, not on the conclusions they
generate." Id. at 595.

Shortly after the Supreme Court decided Daubert , we
applied its teachings in In re Paoli Railroad Yard PCB
Litigation, 35 F.3d 717 (3d Cir. 1994)("Paoli II"). There, we
concluded that Rule 702 has two major requirements;
"qualifications" and "reliability," and noted that an expert's
"qualifications" are interpreted liberally. In discussing
"Reliability" we listed the factors enunciated in Daubert but
noted the continued vitality of our prior analysis in United
States v. Downing, 753 F.2d 1224 (3d Cir. 1985). We held
that a "district court should take into account all of the
factors listed by either Daubert or Downing as well as any
others that are relevant," Paoli II, at 742, in conducting an
inquiry into the reliability of proposed expert testimony. The
factors that are relevant under Daubert and Downing
include: "(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subjected 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." Paoli II, at 742 n. 8.

In Paoli II, we also stated that the expert's testimony
must "fit," in that it must assist the trier of fact. Id. at 743.
Admissibility thus depends in part upon "the proffered
connection between the scientific research or test result to
be presented and particular disputed factual issues in the
case." Id. This standard is not intended to be a high one,
nor is it to be applied in a manner that requires the
plaintiffs "to prove their case twice -- they do not have to
demonstrate to the judge by a preponderance of the
evidence that the assessments of their experts are correct,
they only have to demonstrate by a preponderance of
evidence that their opinions are reliable." Id. at 744. This is
a very important distinction. The test of admissibility is not
whether a particular scientific opinion has the best

                               11
foundation or whether it is demonstrably correct. Rather,
the test is whether the "particular opinion is based on valid
reasoning and reliable methodology." Kannankeril v.
Terminix International Inc., 128 F.3d 802, 806 (3d Cir.
1997). "The analysis of the conclusions themselves is for
the trier of fact when the expert is subjected to cross-
examination." Id.

Nonetheless, "conclusions and methodology are not
entirely distinct from one another." General Electric Co. v.
Joiner, 522 U. S. 136, 146 (1997). A court "must examine
the expert's conclusions in order to determine whether they
could reliably flow from the facts known to the expert and
the methodology used." Heller v. Shaw Industries, Inc., 167
F.3d 146, 153 (3d Cir. 1999). "A court may conclude that
there is simply too great a gap between the data and the
opinion proffered." Joiner, at 146; see also In re TMI
Litigation, 193 F.3d 613, 682-683 (3d Cir. 1999), opinion
amended by 199 F.3d 158 (3d Cir.), cert. denied sub nom.
General Public Utilities Corp. v. Abrams, ___ U. S. ___, 120
S. Ct. 2238 (2000) and Dolan v. General Public Utilities
Corp., 120 S. Ct. 2238 (2000).

Although Daubert was decided in the context of scientific
knowledge (whether evidence established a connection
between the defendant's drug and birth defects), Daubert
has since been extended to the kind of "technical or other
specialized knowledge," at issue here. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U. S. 137, 141 (1999) ("We conclude
that Daubert's general holding--setting forth the trial
judge's general `gatekeeping' obligation--applies not only to
testimony based on `scientific' knowledge, but also to
testimony based on `technical' and `other specialized'
knowledge."). The expert in Kumho Tire was an engineer
and the Court there framed the issue before it as"how
Daubert applies to the testimony of engineers and other
experts who are not scientists." Id. at 141.

We examine the specific testimony that was excluded
here against this background. "We afford a district court's
application and interpretation of Rule 702 plenary review,
Paoli II at 749, but we review the court's decision to admit
or reject testimony under an abuse of discretion standard.
Joiner, at 143. An abuse of discretion arises when the

                               12
district court's decision "rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper
application of law to fact." Hanover Potato Products, Inc. v.
Shalala, 989 F.2d 123, 127 (3d Cir. 1993). An abuse of
discretion can also occur "when no reasonable person
would adopt the district court's view." Id. We will not
interfere with the district court's exercise of discretion
"unless there is a definite and firm conviction that the court
below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant
factors." Id.

IV. THE CHALLENGED EXPERT TESTIMONY.

A. John N. Noettl.

Noettl, the accident reconstruction/design engineer, was
to testify that the truck was defectively designed. 13 Noettl's
proffered testimony is contained in a preliminary report
dated June 16, 1997; an amended report dated December
4,1997; an affidavit dated September 23, 1998; and two
depositions.

In his preliminary report, Noettl opined that the truck
Oddi was driving

       rode up on the guard rail because of the failure of the
       left side of the front bumper. . . . Had the bumper not
       significantly deformed back and inward the vehicle
       would have been deflected by the guard rail.

       It is also my opinion that the floor board allowed
       intrusion by the guard rail and possibly the concrete
       barrier into the occupant compartment in the area
       near the brake pedal and where the driver's feet and
       legs would be located. This intrusion was a direct
       cause of the injuries to Mr. Oddi.

       Had the bumper and the floor board been properly
       structurally designed the vehicle would not have gone
       over the guard rail and the occupant compartment
_________________________________________________________________

13. Ford and Grumman do not challenge his qualifications as an expert.

                               13
        would not have been intruded by the guard rail and
        concrete barrier.

App. at 104-105.

After he reviewed the deposition of defense expert Donald
Edelen, Noettl submitted an amended report, dated
December 4, 1997. In it he stated:

        It is my opinion that [Ford] should have warned
        [Grumman] of the fact that the front bumper on their
        chassis is for decorative trim only and will not offer
        protection to the body and occupant in a collision. As
        a result of the design of the chassis and bumper, the
        front wheels of the vehicle become exposed in
        foreseeable accident situations. Ford should have
        specifically warned that the bumper was extremely
        weak due to the fact that it had no backing plate or
        brackets for reinforcement and because it had holes in
        the bumper placed immediately adjacent to the outside
        where the bumper mounted to the chassis.

* * *

       Neither Ford nor Grumman conducted any testing that
       involved the vehicle impacting with guardrails. Neither
       Ford nor Grumman incorporated any design(s) into the
       chassis or body of the vehicle that would prevent or
       reduce the likelihood of the vehicle going over a
       guardrail in the event of an impact with a guardrail.
       Due to the vehicle's height, weight, and design the
       vehicle as a propensity to ramp up onto the guardrail
       in foreseeable collision situations.14 . . . This design
_________________________________________________________________

14. This sentence could be read as advancing a new theory of design
defect -- a "propensity to ramp" theory - because of the height, weight
and design of the truck. That is, it could be taken as a theory separate
and apart from Noettl's defective front bumper andfloor board theories.
However, during his second deposition, Noettl clearly stated that he was
not advancing any such separate theory. He testified:

        Q: Alright. "Has a propensity to ramp." When you say that, you are
        just telling me that this is a bigger truck. And as a bigger truck,
you
        believe that it has more of a propensity to ramp than smaller
        vehicles?

                                14
         defect caused or contributed to the cause of the
         accident and to Mr. Oddi's injuries.

App. at 100-01.

In response to summary judgment motions, in which
Ford and Grumman noted certain deficiencies in Noettl's
submissions, Noettl prepared an affidavit which Oddi's
counsel attached to Oddi's response to the summary
judgment motions. That affidavit is dated September 23,
1998, and reads, in relevant part:

         1. Given the basic design of this vehicle, the following
         is a description of alternative designs that in my
         opinion, would have (1) prevented the Oddi vehicle
         from ramping the guard rail and (2) prevented the
         intrusion which occurred of structural components into
         the occupant compartment.

         A. A reinforced bumper. The bumper on the subject
         vehicle had a measured 3.5 X 6.5 inches holes at
         critical stress points next to the frame rails to which
         the bumper is attached. The holes were designed and
         manufactured by the bumper manufacturer. The
         bumper should have been reinforced at these points by
         eliminating the holes and/or welding inch to inch steel
         reinforcement wedges between the frame rails and the
         upper and lower edges of the back side of the bumper.

       B. Steel brackets should have been welded to the . . .
       back side of the upper and lower edges of the back of
       the bumper.
_________________________________________________________________

         A: That is correct.

         Q: That is all there is to it?

         A: That is correct.

         Q: And is that a defect?

         A: No. That is not in and of itself a defect. The defects are the
things
         we discussed. [i.e., the bumper and floor boards, discussed in a
         prior deposition].

Supp. App. at 144a (emphasis added).

                                    15
C. The bending and tensile properties and or metal
thickness of the bumper should have been increased in
addition to A or B as described above.

D. Various bumper configurations such as tubular or
cylinder designs should have been manufactured and
tested in addition to A, B, and C above. These bumper
configurations are stronger than flat bumpers with
similar metal characteristics.

E. The occupant compartment should be reinforced
by increasing the bending and tensile properties and
metal thickness (by .125 inch increments) in the area
of the floorboard and fire wall and\or by welding or
forming ribbing to the metal in this area. Safety factors
of fifty or hundred percent are common in products.

2. I have observed bracket and wedge bumper
reinforcements on similar vehicles. As to metal
thickness -- the steering components on the subject
vehicle were protected by a measured .35 inch
(approximately) thick steel enclosure while the bumper
on this vehicle was designed to be .208 inch thick-- a
difference of approximately .142 inch.

3. Guard rails of this type are common in road way
design and vehicle encounters of the type that
happened with the Oddi vehicle should be expected by
manufacturers.

4. The design changes I have described were capable
of being incorporated into the design and manufacture
of this truck in 1976 using basic engineering design
and manufacturing techniques.

5. The design changes I have described would not
interfere with the function or intended use of the truck.

6. In my opinion the above design changes would
have greatly increased bumper strength and occupant
compartment protection with very little total
incremental vehicle manufacturing cost.

7. It is my opinion that if the design changes
described above were incorporated into the
manufacturing process of the Oddi vehicle it would not

                        16
       have ramped on to the guard rail and would not have
       experiences sudden deceleration from striking the
       bridge abutment. This would have prevented the
       intrusions into the occupant compartment and the
       significant injury which Mr. Oddi sustained.

App. at 123-24.

In one of his depositions, Noettl testified that he based
the opinions contained in his June 16, 1997 preliminary
report in part on a review of accident reports, photographs,
witnesses' statements, Oddi's medical records, and Oddi's
deposition testimony; and in part on his own [Noettl's]
"experience," "academic training," and"research that [he
does] almost on a continuous basis, reviewing technical
literature." App. at 138-139. However, Noettl was unable to
identify any particular literature that he relied upon to form
any of the opinions contained in his preliminary report. Id.
Noettl testified that he did view films of crash tests in
forming his opinions, Id. and he insisted that the
alternative designs he suggested could be found in"any
machine design book." Id. at 48-49. Noettl did list a
number of accepted authorities and textbooks in a
document Oddi's counsel refers to as an "offer of proof." Id.
at 201.

Ford and Grumman point to specific portions of Noettl's
depositions which they claim plainly demonstrate that
Noettl's proffered expert testimony does not meet Daubert
standards. Noettl opined that the front bumper was
defective because it "bent back" when it struck the
guardrail. He explained this was a defect because"it was
designed with a large lever arm on the vehicle, out from the
frame rail. It had holes in it for towing, which, in my
opinion, would greatly weaken the structure, especially with
that large lever arm on it which would allow it to be bent
back." App. at 45. Noettl claimed that the bumper should
have been designed "with either bracketry that would go
from the frame rail out to the center part of that part of the
bumper, or what [he referred to] as a backing wedge." Id. at
47. According to Noettl, the "backing wedge""would be like
a V[ ]." Id.

However, when Noettl was asked to elaborate upon his
belief that the bumper was defectively designed because it

                                17
bent backward upon striking the guardrail the following
exchange occurred:

       Q: Now, have you determined what force was inflicted
       on the guardrail at the time of initial impact with the
       truck?

       A: No, I haven't. No.

       Q: Have you determined what force the truck inflicted
       on the bridge abutment and the rail on top of the
       bridge abutment when it made contact with that?

       A: No, the reason for answering both those questions,
       you would have a range of variables, also, but
       guardrails are designed to absorb energy and deflect
       vehicles. You would have to make an awful lot of
       assumptions.

       Q: Have you determined or measured the strength or
       rigidity of the guardrail?

       A: No.

       Q: You haven't ascertained how much force it could
       hold, is that correct?

       A: That's correct.

App. at 43-44. Later in the deposition, Noettl testified as
follows:

       Q: Do you know how much force it took to bend that
       bumper to the point where it's bent?

       A: No, I don't.

       Q: Do you know how much force that bumper was
       capable of sustaining without bending? Have you
       determined that?

       A: I haven't determined that, right.

Id. at 46-47.

When Noettl was questioned about his proposed designs
for the bumper, and design changes that would have been
necessary to remedy the suggested defect, he offered several
possibilities, but he conceded that he had not attempted to
test or substantiate the modifications he was suggesting.

                               18
Q: What type of metal should the wedge be
constructed from?

A: It could be the same as the bumper, if you wanted
to, but you just turn it on end. You could have many,
many choices on that.

Q: What if you used a brace? What type of metal
should that brace be constructed from?

A: Again, you could use the same as the bumper.
Again you would have a lot of choices on that. The
bracketry would probably not be as strong as the
wedge. Probably not. Test it and maybe you would
achieve a strength that would far exceed anything you
could expect.

Q: What would be the tensile strength or the gauge of
the metal have to be on both of those options?

A: The way you go through is look up in books and
you say, "Here. We got some metal here and let's try
this." Certain gauge, certain strength, something that
is readily available. It's not a big thing, is what I'm
trying to say. You certainly would not cut holes in it
right at one of the most critical points of where you
major bending force is going to occur, which is at your
railing.

Q: So this would be something relatively simple to
look up in a book, and you could determine from the
computations in some engineering book what you
should be using. What would the name of the book be?

A: Any machine design book.

Q: Is that a particular book or is that a type of a
book, machine design book?

A: That's a type of book.

Q: Could you give me an authority?

A: There are machine design books that give you all
types of metal gauges. If you go through the design
process for any of these things on a bumper, frame
rails, exactly what they do -- they don't sit down. They
don't do finite element analysis. They look up in books

                        19
       what metal thickness, what's our yield strength, what's
       our tensile properties of this metal, bang, bang, bang.
       We're going to use this.

       Q: Have you done that?

       A: No. I haven't done that, no.

       Q: So you don't know what the thickness would have
       to be, what the metal gauge, what the tensile strength
       --

       A: Right.

       Q: -- what type of material you would need to use; is
       that correct?

       A: I told you I would use -- probably start with the
       same material that you have in the bumper. Take a
       piece of metal, turn it on its edge, put it in back of it,
       weld it on there for a test, see what strength you do
       gain out of this as far as impact, as far as bending
       moments and as far as shearing. You sure hope it
       won't shear off. You would do that. You would say,"I
       want it a little bit stronger." The easiest way, by far, is
       to thicken the metal. That's all you have to do. Get a
       lower gauge metal and put that on there and try it
       again.

       Q: How thick would the metal have to have been to
       have not deformed in this impact?

       A: I would say, in my opinion, half inch to an inch
       and a half range would be more than adequate to
       withstand the force on edge. That's the thickness, not
       the width.

       Q: What would the width be?

       A: I don't know. Three inches or so, four inches.

B. Leon Kazarian.

Kazarian, the biomechanical engineering consultant, was
retained to explain how Oddi received his injuries. Kazarian
authored a preliminary report, dated June 18, 1997, in
which he opined: "On impact, the end of the bridge

                                20
pierced and penetrated the driver's occupant compartment
impaling, cutting and crushing Mr. Oddi's extremities." The
report noted that Oddi "was found outside the vehicle on
the grassy slope next to the bridge." App. at 113. Though
Oddi had been thrown from the truck, Kazarian concluded
that Oddi had "sustained his primary injuries at the time
he was in the driver's seated position," and that his injuries
occurred "as a result of the bridge piercing, penetrating and
crushing his extremities while he was in the driver's
compartment." Id.

The following exchange occurred during Kazarian's
deposition:

       Q: Have you considered what would have happened to
       Mr. Oddi in the event that there was no compromise to
       the floor of the vehicle and he still had the same
       accident? Are you able to tell us what would have
       happened to him physically?

       A: No, not as I sit here.

       Q: It could have been worse, it could have been
       better?

       A: I don't know.

       ******************************

       Q: And you hold no opinion on whether or not the
       vehicle mounted the guardrail, correct?

       A: That's correct.

       Q: Given that, have you considered what injuries, if
       any, Mr. Oddi would have sustained if the vehicle
       didn't mount the guardrail or ramp the guardrail?

       A: No.

       Q: So I take it that since you haven't considered that
       aspect, that you hold no opinions as to what injuries,
       if any, Mr. Oddi would have sustained had the vehicle
       not mounted or ramped the guard rail.

       A: Yes. As I sit here, I haven't thought about that.

Grumman's Br. at 32. Therefore, although Kazarian
testified about how Oddi received his injuries, he was

                               21
unable to offer an opinion on the key aspect of Oddi's
crashworthiness claim, i.e., whether Oddi's injuries were
exacerbated by the design of the bread truck.

V. DISCUSSION.

Oddi argues that the district court erred in denying his
motion for an in limine hearing on the Daubert challenge,
and in granting summary judgment. We will address each
argument separately.

A. Necessity for an in limine Hearing under Daubert.

Oddi bases his contention that a hearing was required
upon Kumho Tire (decided just one week before the district
court granted summary judgment here), and our holding in
Padillas.15 We decided Padillas one month after the district
court granted summary judgment.

Oddi submits that his case had been pending for four
years before the Supreme Court decided Kumho Tire, and
that Kumho Tire was not decided until after each of the
following occurred in his case: (1) he filed his experts'
reports; (2) his experts had been deposed; (3) defendants
had filed their summary judgment motions; and (4) he had
filed his papers in opposition to the summary judgment
motions. Oddi's Br. at 15. Moreover, he claims that from
the time he started his lawsuit until Kumho Tire was
decided, the law did not assess nonscientific expert
testimony under Daubert. Id. Nonetheless, the district court
expressly subjected Noettl's testimony to Daubert scrutiny
under Kumho Tire. See 3.31.99 Dist. Ct. Op. at 3, 7.

Thus, though not clearly articulated, Oddi is arguing that
Kumho Tire worked a substantial change in the law and
that the district court blind-sided him by subjecting his
experts' testimony to a Daubert analysis. He contends that
the district court's failure to hold an evidentiary hearing
"precluded [him] from ever having the opportunity to
present [his] expert testimony in accordance with the
Kumho decision." Oddi's Br. at 15.
_________________________________________________________________

15. Although he now makes this argument to us, he never asked the
district court to conduct such a hearing.

                               22
Oddi's claim that the scope of Daubert was unsettled
until Kumho Tire is not without force. See In re Unisys
Savings Plan Litigation, 173 F.3d 145, 162 n.2 (3d Cir.
1999) (Becker, J., dissenting). Prior to Kumho Tire, there
was substantial uncertainty about whether Daubert applied
to nonscientific expert testimony. Contrast Surace v.
Caterpillar, Inc., 111 F.3d 1039, 1055-56 (3d Cir. 1997);
United States v. Valasquez, 64 F.3d 844, 847-50 (3d Cir.
1995); and Habecker III, at 289-90 (3d Cir. 1994), with
Lauria v. National Railroad Passenger Corp., 145 F.3d 593,
599 n.7 (3d Cir. 1998).16 In Lauria we not only concluded
that Daubert scrutiny did not apply to the proffered
testimony of an engineer, but also that a nonscientific
expert's testimony was admissible under Rule 702 based
upon the expert's experience and knowledge. Id. at 599.

Nevertheless, we do not think that Oddi's reliance on
Kumho Tire establishes that the district court erred in
granting summary judgment here without an in limine
hearing. Oddi was surely alerted to this problem when Ford
raised a Daubert challenge in its summary judgment
motion. In his brief in opposition to the defendants'
summary judgment motions, Oddi specifically discussed
Daubert, and argued that his experts' testimony satisfied
Daubert. App. at 70-94. Despite the uncertain scope of
Daubert, he never argued that Daubert did not apply to
nonscientific expert testimony. Moreover, Oddi now reads
far too much into our decision in Padillas.

It is not clear whether Oddi is arguing that Padillas
always requires a hearing or that the procedural posture of
his case is so like Padillas that the district court abused its
discretion by not holding an in limine hearing. In Padillas,
we focused upon the process by which the district court
there determined that proffered expert testimony was
inadmissible under Daubert. 186 F.3d at 417 ("We do not
reach the question whether the district court abused its
discretion in holding the [expert's] Report inadmissible
under Rule 702. Our concern is with the process by which
the court arrived at its ruling.").
_________________________________________________________________

16. In Lauria we specifically noted that the Circuit Courts of Appeals
were split over whether Daubert applied to nonscientific expert
testimony. Id. at 599 n.7.

                                23
Padillas had been injured while hosing down a chicken
cutting machine manufactured by Stork-Gamco. The
cutting machine had an exposed cutting blade. He sued
Stork-Gamco alleging strict products liability, negligence,
breach of warranty and failure to warn. To establish
liability, Padillas retained an engineering expert (Lambert)
who opined in a written report that Stork-Gamco's failure
to provide a guard that would prevent the snagging of the
hose during wash-down and its failure to protect workers
from the cutting blade resulted in a defective machine that
caused his injury. Id. at 416.

Stork-Gamco filed a motion for summary judgment,
arguing that Lambert's report did not meet the Daubert
standards for admissibility. The district court agreed,
excluded the report, and then granted summary judgment
to Stork-Gamco. In reversing and remanding for an in
limine hearing on Lambert's proffered testimony we
criticized the process used by the district court. We noted
at the outset that we have "long stressed the importance of
in limine hearings under Rule 104(a) in making the
reliability determination under Rule 702 and Daubert." Id.
at 417 (internal quotations and citations omitted). We also
reiterated the importance of an in limine hearing in ruling
upon Daubert challenges even in the absence of a request
for such a hearing. We stated that the district court has an
"independent responsibility for the proper management of
complex litigation" and emphasized that the plaintiff
"need[s] an opportunity to be heard" on the critical issues
of scientific reliability and validity. Id. The opportunity to be
heard is important because it allows a plaintiff"a chance to
have his or her expert demonstrate and explain the`good
grounds' upon which the expert evidence rests." Id. at 418.

However, our analysis in Padillas cannot be divorced
from the record that was before us. In commenting upon
the district court's Daubert analysis of Lambert's report, we
noted that it "does not establish that Lambert may not have
`good grounds' for his opinions, but rather, that they are
insufficiently explained and the reasons and foundations
for them inadequately and perhaps confusingly explicated."
Id. Lambert's report was quite conclusory and did not
adequately explain the basis for his opinion, or the

                               24
methodology employed in reaching his conclusions. It was
in that context that we held that if the district court "was
concerned with the factual dimensions of [Lambert's]
evidence . . . it should have had an in limine hearing to
assess the admissibility of the report giving the plaintiff an
opportunity to respond to the court's concerns." Id. (citation
and internal quotations omitted). We stated, "when the
ruling on admissibility turns on factual issues, . .., at least
in the summary judgment context, failure to hold[an in
limine] hearing may be an abuse of discretion." Id.
(emphasis added).

Oddi attempts to equate the district court's rejection of
Noettl's testimony here with the rejection of Lambert's
testimony in Padillas. He submits that the district court
found the basis of Noettl's conclusions "confusing." Oddi's
Br. at 13. Consequently, he argues, the district court
should have conducted an evidentiary hearing as we
ordered in Padillas. Id.

Initially, we suspect that Oddi is being disingenuous in
stating that the district court found that the basis of
Noettl's conclusions was "confusing." The district court's
reference to "confusion" had nothing to do with its decision
to exclude Noettl's testimony. Rather, the "confusion"
stemmed from a statement Noettl made in his December 4,
1997 amended report. He there referred to an alleged defect
based upon the height, weight and design of the truck. He
said those factors created a propensity to ramp. In his
motion for reconsideration, Oddi claimed that he was
entitled to reconsideration because the district court
"disregarded his defect claim regarding the vehicle's
`propensity to ramp' " because of the size of the vehicle.
9/2/99 Dist. Ct. Op. at 9-10. The district court's
"confusion" was nothing more than a reference to the fact
that neither the court nor the defendants could have
interpreted Noettl's testimony about the truck's"propensity
to ramp" as advancing an additional design defect apart
from the defective bumper and flooring. To alleviate its
"confusion," the district court reviewed Noettl's deposition
testimony on that issue and quite correctly concluded that
Noettl was not raising an alternative or additional design
defect theory. 9/2/99 Op. at 13. See n.15, supra. Thus, the

                               25
district court did not disregard any of Noettl's theories and
was not confused about the basis of Noettl's opinions.

More to the point however, Oddi's attempt to equate his
circumstances with those in Padillas ignores the record
here. As noted above, the record in Padillas was scant, and
the district court therefore had no way of determining how
Lambert had arrived at his conclusions about the chicken
cutting machine. Accordingly, we held that the court had
an independent obligation to reach a decision upon a
record that had been adequately developed to allow for a
meaningful evidentiary determination. We based that
holding upon two separate considerations. "First,. . . the
court has an independent responsibility for the proper
management of complex litigation. Second, because plaintiff
could not have known in advance the direction the district
court's opinion might take and thus needed an opportunity
to be heard on the critical issues before having his[/her]
case dismissed." Id. at 417 (citations omitted).

Here, however, the evidentiary record pertaining to Oddi's
expert was far from scant. As noted, it consisted of: (1) a
preliminary report; (2) an amended report, prepared after
Noettl reviewed the deposition testimony of a defense
expert; (3) an affidavit specifically prepared to meet the
defendants' Daubert challenge contained in their summary
judgment motions; and (4) Noettl's two depositions. The
district court therefore apparently saw no need to conduct
a hearing before ruling on the Daubert challenges. This is
consistent with Padillas and perfectly appropriate under
Kumho Tire.

In Kumho Tire the expert's proffered testimony was taken
from deposition testimony. 526 U. S. at 142 ("The plaintiffs
rested their case in significant part upon deposition
testimony provided by an expert in tire failure analysis,
. . . , who intended to testify in support of their
conclusion."). In the district court, the defendants
requested an in limine hearing to challenge the plaintiff 's
expert's proffered testimony. However, the district court
refused that request, finding that two depositions
submitted to it (one from the case before it and one from an
unrelated case involving similar issues) were sufficient to
allow an inquiry under Daubert. See Carmichael v. Sanyang

                               26
Tires, Inc., 923 F. Supp. 1514, 1518 (S. C. Ala. 1996). In
approving the process the district court used to conduct its
Daubert inquiry the Court wrote:

       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. Our opinion in Joiner
       makes clear that a court of appeals is to apply an
       abuse-of-discretion standard when it reviews a trial
       court's decision to admit or exclude expert testimony.
       That standard applies as much to the trial court's
       decision about how to determine reliability as to its
       ultimate conclusions.

526 U. S. at 152 (citations and internal quotations
omitted)(emphasis added).

The same situation obtains here. Although Oddi
strenuously claims that he was entitled to an in limine
hearing, he does not even begin to suggest how such a
hearing would have advanced his position, and we can not
begin to imagine that it would have. He does not claim that
he has any new or additional information to present, and
he does not claim that the factual record before the district
court was somehow incomplete insofar as Noettl's
testimony is concerned.17 Rather, he merely insists that he
is entitled to a hearing under Padillas. However, "Padillas
certainly does not establish that a District Court must
provide a plaintiff with an open-ended and never-ending
opportunity to meet a Daubert challenge until plaintiff `gets
it right.' " In re TMI Litigation, 199 F.3d at 159. Yet, that is
where Oddi's argument would take us.

Moreover, Oddi's reliance upon a denial of an in limine
hearing also reflects a basic misperception about the nature
of the hearing the court might have conducted even if it
had afforded Oddi such a hearing. In Downing, we
_________________________________________________________________

17. We do not suggest that the district court would have abused its
discretion in denying an in limine hearing on this record even if Oddi had
made these claims.

                               27
reiterated that trial courts retain significant discretion to
determine in each instance "the procedure [it] should follow
in making preliminary determinations regarding
admissibility of evidence." 753 F.2d at 1241. We said that
"we will not prescribe any mandatory procedures that
district courts must follow in every case involving proffers
of scientific evidence," and then noted "[a] few general
observations . . ." as to how the preliminary evidentiary
issues might be decided under Rule 702. We stated:

       It would appear that the most efficient procedure that
       the district court can use in making the reliability
       determination is an in limine hearing. Such a hearing
       need not unduly burden the trial courts; in many
       cases, it will be only a brief foundational hearing either
       before trial or at trial but out of the hearing of the jury.
       In the course of the in limine proceeding, the trial court
       may consider, inter alia, offers of proof, affidavits,
       stipulations, or learned treatises, in addition to
       testimonial or other documentary evidence (and, of
       course, legal argument).

Id. Here, the district court already had before it the
depositions and affidavits of the plaintiff 's experts. Nothing
more was required.

This conclusion is not inconsistent with our recent
holding in Elcock v. Kmart Corp., __ F.3d __, 2000 WL
1486489 (3d Cir. Oct. 10, 2000). There, we reversed an
award of damages and remanded for an in limine hearing as
to the admissibility of the testimony of plaintiff 's economic
loss expert. The witness in question, Dr. Chester
Copemann, testified as an expert in vocational
rehabilitation, and his testimony "substantially informed
the large award for loss of future earnings and earning
capacity." Id. at * 1. We reversed based upon our
conclusion that "there should have been a Daubert hearing
prior to the receipt of Copemann's testimony. . . ." Id. The
defendant there had "repeatedly requested that the District
Court conduct a Daubert hearing regarding Copemann's
methods as a vocational rehabilitationist." Id. at *7. The
case was litigated before the Supreme Court's holding in
Kumho Tire, and the district court did not view the
admissibility of the testimony of plaintiff 's nonscientific

                               28
expert as a Daubert issue. Id. However, Elcock, like Padillas,
is a situation where the "gatekeeper" could not determine
what methodology the expert used, and the reliability of the
expert's conclusion could therefore not be established. In
Elcock, we stated:

       [A] review of Copemann's vocational rehabilitation
       testimony demonstrates the significant reliability
       questions raised by his methodology and compels the
       conclusion that a Daubert hearing would have
       permitted a fuller assessment of Copemann's analytical
       processes and thus was a necessary predicate for a
       proper determination as to the reliability of
       Copemann's methods.

Id. at *8. In other words, a hearing was necessary to
determine how the expert reached his opinion. Id . at *9 ("An
expert's opinion is reliable if it is based on the methods and
procedures of science rather than on subjective belief or
unsupported speculation; the expert must have good
grounds for his or her belief.")(citations and internal
quotations omitted). However, "because Copemann never
explained his method in rigorous detail, it [was] nearly
impossible for [the defendant's] experts to repeat
Copemann's apparently subjective methods. . . " Id. at *11.18
However, here, Noettl did explain how he arrived at his
opinion, and he did it in as much detail as possible given
the nature of his "inquiry."

Accordingly, we reject Oddi's assertion that he was
entitled to an in limine hearing before the court could reject
his expert's testimony. Our conclusion does not, however,
end our inquiry. We must still determine whether the
district court abused its discretion in ruling that Oddi's
proffered expert testimony was inadmissible under Rule
702 and Daubert.19
_________________________________________________________________

18. In Elcock, we also concluded that the trial court had erred in
allowing
the plaintiff 's economist to testify at trial because his testimony was
not
"accompanied by a sufficient factual foundation[to be] submitted to the
jury." 2000 WL 1486489 at *17.

19. Two small matters also remain that pertain to this portion of Oddi's
argument. First, Oddi argues that the district court failed to rule on his

                               29
B. The District Court's Exercise of Discretion.

Because "the evidentiary requirement of reliability is
lower than the merits standard of correctness," the
standard for determining scientific reliability"is not that
high." Paoli II, at 744-45. The test is not "[w]hether the . . .
expert might have done a better job." Kannankeril, 128 F.3d
at 809. Nonetheless, even though the Federal Rules of
Evidence "embody a strong and undeniable preference for
admitting any evidence which has the potential for assisting
_________________________________________________________________

motion to strike Grumman's reply brief filed after Oddi filed his response
to the original summary judgment motions. As noted earlier, Grumman's
initial summary judgment motion did not raise a Daubert challenge to
Oddi's experts' testimony. It was only after Oddi responded to Ford's and
Grumman's summary judgment motions that Grumman asserted a
Daubert challenge via a reply brief. Oddi thenfiled a motion to strike,
presumably asserting that the reply brief was filed without leave of
court.
However, the district court did not rule on Oddi's motion to strike, and
Oddi claims that he was prejudiced by the district court's failure to
strike Grumman's reply brief. The prejudice lies in the fact that,
according to Oddi, Ford's Daubert challenge was only to Noettl's bumper
testimony and not the flooring testimony, while Grumman's was to both
the bumper and flooring. Thus, Oddi argues that he was not able to
respond the newly asserted challenged to Noettl'sflooring testimony.
However, Oddi would be hard pressed to demonstrate prejudice because
Ford's summary judgment motion mounted a Daubert challenge to
Noettl's testimony with regard to the bumper claim as well as the flooring
claim. Thus, even if it is assumed for argument's sake that the district
court improperly failed to strike Grumman's reply brief, Oddi suffered no
harm because Noettl's testimony as to both the bumper and the floor
was attacked at the outset by Ford. Furthermore, Oddi does not cite any
authority for his contention that it was improper for Grumman to file a
reply brief or any authority supporting his contention that Grumman's
reply brief should have been stricken. Consequently, Oddi's prejudice
argument is without merit.

Second, Oddi argues that the district court did not comply with its
local court rule 7.1F which requires oral argument for dispositive
motions "unless expressly precluded by the court." However, this
argument is also without merit. As the district court expressly noted, it
is the custom and practice of the United States District Court for the
Western District of Pennsylvania to preclude oral argument on
dispositive motions. The ability of the district courts to preclude
argument is expressly given to the court by the local rule.

                               30
the trier of fact," Kannankeril, at 806, we do not believe that
the district court abused its discretion in rejecting Oddi's
expert testimony here.

As we noted earlier, the factors to be considered in a
Daubert admissibility inquiry 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.

Paoli II, at 742 n. 8. While Noettl clearly meets Daubert's
qualifications requirement, his expert opinion does not
satisfy any of the other considerations that determine
admissibility.

Noettl posited two hypotheses. His first hypothesis was
that the front bumper's design should have included either
bracketry or a brace system that would have increased the
bumper's rigidity, prevented the truck from ramping, and
deflected the vehicle back onto the roadway after impact
with the guard rail. His second hypothesis was that thicker
and/or ribbed metal on the flooring of the cab would have
retained the integrity of the cab. However, Noettl quite
candidly testified that he never tested either hypothesis.
Consequently, he has not satisfied the first of the Daubert
factors. The Supreme Court has explicitly instructed,
"[o]rdinarily, a key question to be answered in determining
whether a theory or technique is scientific knowledge that
will assist the trier of fact will be whether it can be (and has
been) tested." Daubert, at 593 (emphasis added).

Although Daubert does not require a paradigm of
scientific inquiry as a condition precedent to admitting
expert testimony, it does require more than the haphazard,
intuitive inquiry that Noettl engaged in. Given Noettl's
responses, Oddi could not establish the existence of Noettl's

                               31
methodology and research let alone the adequacy of it.20
This is illustrated by Noettl's attempt to explain how he
arrived at his conclusion. Noettl testified that he had
"studied" bread trucks but was not able to state if they
were the same kind of truck that Oddi was driving or even
if they were produced by the same manufacturer.

       Q: What type of vehicles [did you examine]?

       A: Bread trucks.

       Q: Whose bread trucks? Who made them?

       A: They were in front of a grocery store and I walked
       up and looked at them. I didn't record anything off of
       them. I seen them [i. e., bracketry or wedge supports]
       on them [i. e., front bumpers].

       ****************************

       Q: You didn't make a note of what the bread truck
       was so you could go back and say, "Here's the design
       I'm proposing and somebody is already using this."

       A: I said that in my mind, and I had groceries and I
       didn't have a camera and nothing else.

       Q: You don't remember the name of the bread
       company?

       A: No, I don't. It might come to me. I can't tell you,
       no.

       ******************************

       Q: You don't know whether or not those trucks would
       have sustained a bending of the bumper the same as
       this truck because we don't know what the forces are,
       right?

       A: I would say that they have a better chance, but I
       can't tell you more than that, no. That's correct.

       ******************************
_________________________________________________________________

20. Methodology is defined as "body of methods, rules, and postulates
employed by a discipline: a particular procedure of set of procedures."
WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 747 (1990).

                               32
       Q: But, what you've seen, you don't know whether or
       not that would have changed the scenario in this
       accident one way or the other?

       A: I haven't evaluated that.

App. at 53.

Moreover, not only did Noettl fail to test either
hypothesis, he never even considered the design of the
guardrail or the possibility that the damage to Oddi's truck
was a factor of the design of the guardrail, not the design
of the truck.

       Q: What if the guardrail was deformed and bent back
       by the force of the impact so it was bent to the point
       where it was lower than the bumper? Could a ride-up
       occur then?

       A: It if was bent back further than the bumper's
       height.

       Q: If it was bent back and, therefore, it was lower
       than the height of the bumper, could it ride up?

       A: It's possible. I haven't thought of it, and how long.
       I would have to look at that. If you, your tire is exposed
       to ramping --

       Q: If you have the bumper and the guardrail here and
       the guardrail bends down to a point lower than the
       bumper, the tire could ride up on it, isn't that correct?

       A: That is a possibility, yes.

App. at 46.

Noettl also conceded that strengthening the bumper as
he proposed could result in even greater injury because the
increased rigidity could transmit more force to the driver of
the truck than the defendants' design.

       Q: To get back to my question, would the energy-- if
       you had a rigid bumper, on impact, the energy of the
       impact and the force of the impact would be
       transferred to the occupants, right?

       A: Some of it would, yes.

                               33
       Q: More of it would than if you had a bumper that
       had give to it?

       A: Right.

App. at 40-14. Noettl did not offer any testimony as to the
point on the continuum between absolute rigidity and the
rigidity of defendants' design that would achieve greater
protection than the bumper on Oddi's truck yet afford a
practical alternative.

Noettl's explanation of the purported defect in thefloor of
the truck was undermined by the same laws of physics that
undermined his testimony that the bumper design was
defective.

       Q: What was wrong with [the floor]?

       A: It wasn't strong enough to prevent intrusion in this
       type of an accident into the occupant compartment,
       exposing the driver to the dangers of that intrusion.

       Q: What should have been done?

       A: The metal could have been made thicker. It could
       have been ribbed.

3/31/99 Op. at 12-3. However's Noettl's own logic clearly
suggests that any such alteration may well have been less
able to absorb impact itself, and therefore it may have
simply transferred even more force to the occupant than
the defendants' design did. Although it may well be that
there is an ideal thickness that would have been able to
absorb far greater force than the defendants' design yet still
protect the truck's occupant, Noettl was not able to identify
that point. He was asked "How thick should it have been?"
He responded: "Well, the way I would do that is to thicken
the metal and rib it and then do a test to see, if under
these types of foreseeable accidents, it would really retain
the integrity of the occupant compartment." 3/31/99 Op. at
12-13. However, he never did that. Id.

Not only did Noettl not test his hypotheses, he did not
even attempt to calculate the force that was inflicted on the
truck by the guardrail at impact; he did not calculate the
force of the bridge abutment on the truck; and he did not
measure the strength of the guardrail or determine how

                               34
much force the guardrail could sustain. He did not know
how much was required to bend the bumper or penetrate
the floor, or how much force the bumper or floor could
withstand. His hypothesis about adding a "wedge" or
bracket to bumper was likewise without support as he did
not determine the tensile strength or gauge of whatever
metal should be incorporated into his alternative design.
Accordingly, there was no way of knowing if his suggested
alternative would better protect the cab's occupant, or if the
suggested modifications were practical.

Essentially, Noettl's expert opinion that the front bumper
would have sustained the impact with the guard rail and
not ramped had it been strengthened with either bracketry
or wedge supports and that the flooring in the occupant
compartment should have been thicker or ribbed is based
on nothing more than his training and years of experience
as an engineer. Although there may be some circumstances
where one's training and experience will provide an
adequate foundation to admit an opinion and furnish the
necessary reliability to allow a jury to consider it, this is not
such a case. See e.g., Lauria, at 599 (former Conrail
foreman's many years of experience with railroad track
equipment, maintenance and safety equipment, qualified
him as an expert to testify about Amtrak's responsibility to
inspect and maintain railroad track in a safe condition).
Noettl's ipse dixit does not withstand Daubert's scrutiny. An
"expert's opinion must be based on the methods and
procedures of science rather than on subjective belief or
unsupported speculation." Paoli II, at 742 (citations and
internal quotations omitted).

Since Noettl conducted no tests and failed to attempt to
calculate any of the forces on Oddi or the truck during this
accident, he used little, if any, methodology beyond his own
intuition. There is nothing here to submit to peer review,
and it is impossible to ascertain any rate of error for
Noettl's assumptions about the forces that caused Oddi's
horrific injuries. Similarly, no standards control his
analysis, and no "gatekeeper" can assess the relationship of
Noettl's method to other methods known to be reliable and
the non-judicial uses to which it has been put. Clearly, the
district court did not abuse its discretion in excluding
Noettle's proffered expert opinion testimony.

                               35
We also note an obvious gap in Oddi's argument. As
recited earlier, Oddi retained two experts, Noettl and
Kazarian. The district court also found that Kazarian's
expert opinion testimony did not satisfy Daubert . 3/31/99
Dist. Ct. Op. at 15-16. Kazarian's expert opinion went to
the "enhanced injuries" element of the crashworthiness
claims. Unless Oddi can establish that the defendants'
design and/or manufacture enhanced injuries he would not
have otherwise sustained, or caused him to sustain injuries
that he would not have sustained otherwise, there can be
no recovery under a theory of crashworthiness.
Carrasquilla, 963 F. Supp. at 458. Consequently, even
assuming arguendo that Oddi convinced us that Noettl's
testimony was improperly excluded, his failure to address
the admissibility of Kazarian's testimony means that Oddi
has no admissible evidence to demonstrate the "enhanced
injuries" elements of a crashworthiness claim. 21

C. The District Court Properly Granted Summary
       Judgment on the Negligent Failure to Test Claim.

Finally, Oddi argues that the district court erred by
granting summary judgment to Ford and Grumman on his
negligent failure to test claim. As noted, Oddi claims that a
manufacturer has an affirmative duty to test its product to
see if it is defective. He then contends that "it is within the
comprehension of lay jurors to understand that if the
Defendants had tested this truck, they would have been
aware that, in an accident, its design would defeat the
purpose of a guardrail." Oddi's Br. at 27. Accordingly, Oddi
argues that even if his expert testimony was properly
excluded, his negligence claim still survives because he
does not need expert testimony to establish that claim.

As a general principle, "[e]xpert evidence is not necessary
. . . if all the primary facts can be accurately and intelligibly
_________________________________________________________________

21. Moreover, Kazarian's testimony would not have been as helpful as
Oddi believes even if it had been admitted. Kazarian conceded that he
had no opinion on what injuries Oddi would have suffered had there
been no compromise to the floor of the occupant compartment and had
no opinion on what injuries Oddi would have sustained if the truck had
not ramped the guard rail.

                               36
described to the jury, and if they, as [persons] of common
understanding, are as capable of comprehending the
primary facts and of drawing correct conclusions from them
as are witnesses possessed of special or peculiar training of
the subject under investigation." Padillas , at 415-16
(citation omitted); see also Cipriani v. Sun Pipe Line Co.,
574 A.2d 706, 710 (Pa. Super. 1990)("However, expert
testimony is not required when the matter under
consideration is simple and lack of ordinary care is obvious
and within the range of comprehension of the average
juror.")(citations omitted). Although expert evidence is
generally required in a products liability case where a
defect is alleged, we have never foreclosed the possibility
that a defective condition may be established through non-
expert evidence. In Padillas we opined that since the case
was at the summary judgment stage, it was "premature to
rule out that testimony and pictures may enable the jury to
clearly see the construction of the machine and the manner
of its use, rendering expert testimony unnecessary."
Padillas, at 416. Consequently, we held that it was entirely
possible that Padillas' non-expert testimony may be
"sufficient to submit his claim of defect to the jury." Id.

The truck Oddi was driving is not at all like the chicken
cutter with exposed blades in Padillas. A whirling cutting
blade without a proper guard is obviously dangerous. It
could reasonably be regarded by a lay juror as a design
defect. In addition, in Padillas, plaintiff offered nonexpert
testimony including, but not limited to, reports from
defendant's own employees that referred to "Safety
Problems," and a report from the defendant's engineering
manager "addressing problems with the machine . ..
including `safety concerns [in that the blades were] not well
grounded.' " 186 F.3d at 415.

We do not believe that a juror could look at the front
bumper and the flooring of the cab of the truck Oddi was
driving and reasonably conclude, not only that its design
was defective, but also that testing would have disclosed
the defect and that it could have been remedied. Such
conclusions are within the peculiar competence of experts.
Inasmuch as Oddi's "defect expert" does not survive
Daubert scrutiny, the district court properly granted

                                37
summary judgment to Ford and Grumman on Oddi's
negligent failure to test claim.22

VI. CONCLUSION.

We are not unsympathetic to Oddi. He suffered horrific
and catastrophic injuries while driving the truck that had
been designed and/or manufactured by the defendants.
That does not, of course, establish that either defendant is
necessarily liable for any of those injuries or that Oddi's
proffered proof was sufficient to prove liability on their part.
Nor does our holding suggest that every plaintiff must
engage in such sophisticated and refined testing (including
crash-testing) as to preclude a successful suit for damages
for all but the wealthiest of plaintiffs or a group of plaintiffs
sufficiently large to allow the economies and practicalities
of class certification. The inquiry required under Daubert
ought not to become an impenetrable barrier for plaintiffs
with limited resources or restricted circumstances. As noted
above, the Supreme Court reminds us that the "inquiry
envisioned by Rule 702 is . . . a flexible one." Daubert, 509
U.S. at 595. It does not require the most elaborate or
sophisticated tests or studies that can be imagined by
opposing counsel. Nevertheless, here, the district court's
inquiry established that Oddi's proffered expert testimony
was not admissible under Fed. R. Evid. 702, and we
conclude that the district court did not abuse its discretion
in rejecting that evidence. Accordingly, we will affirm the
district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

22. Oddi claims that neither Ford nor Grumman moved for summary
judgment on his negligent failure to test claim. Oddi's Br. at 27. That is
incorrect. Ford's and Grumman's summary judgment motions were
directed to all of Oddi's claims, including his negligence claims.

                               38
