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IN the UNITED STATES DISTRICT COURT for the DISTRICT of DELAWARE HARRY P. GALENTINE, JR., : : Plaintiff, : : V. : Civil Action

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IN the UNITED STATES DISTRICT COURT for the DISTRICT of DELAWARE HARRY P. GALENTINE, JR., : : Plaintiff, : : V. : Civil Action IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HARRY P. GALENTINE, JR., : : Plaintiff, : : v. : Civil Action No. 99-589-JJF : THE ESTATE OF WILLIAM R. : STEKERVETZ, : : Defendant. : Peter E. Hess, Esquire of PETER E. HESS, Wilmington, Delaware. Attorney for Plaintiff. Thomas P. Leff, Esquire of CASARINO, CHRISTMAN & SHALK, P.A., Wilmington, Delaware Attorney for Defendant. _________________________________________________________________ OPINION July 22, 2003 Wilmington, Delaware. FARNAN, District Judge, Introduction Plaintiff, Harry P. Galentine, commenced this action on September 2, 1999, against the Estate of William R. Stekervetz, the Estate of Lisa K. Hertzog, Sea Ray, Inc., Sea City Marina, Inc. and Rehoboth Bay Marina, Inc. alleging negligence and claiming property damage arising from a fire which occurred on September 2, 1997. All claims against Defendants, Estate of Lisa K. Hertzog, Sea Ray, Inc., Sea City Marina, Inc. and Rehoboth Bay Marina, Inc. have been dismissed. (See D.I. 21, 69, 77, 79). A bench trial was conducted concerning Plaintiff’s negligence claims against Defendant, Estate of Stekervetz, on May 14 through May 15, 2003. This Opinion constitutes the Court’s Findings of Fact and Conclusions of Law. I. Facts Plaintiff, Harry P. Galentine and William Stekervetz were boat owners whose boats were moored in adjacent slips at the Rehoboth Bay Marina (“Marina”) in Dewey Beach, Delaware. (D.I. 90 at 1). In the early morning of September 2, 1997, a fire broke out on Mr. Stekervetz’s boat while it was docked at the Marina. (Transcript of Bench Trial May 14 -15, 2003 (“Tr.”) at 27-30). That morning the Plaintiff’s boat, “Rush,” was docked at the Marina immediately adjacent to Mr. Stekervetz’s boat. Mr. Stekervetz and Lisa Hertzog, who were on the boat at the time of 2 the fire, were trapped on the Stekervetz boat and died. (D.I. 64 at 1). The fire from Mr. Stekervetz’s boat ultimately spread to “Rush,” completely engulfing the boat in flames. (D.I. 64 at 1). Unable to extinguish the fire on “Rush” with the available hose, “Rush” was towed into Rehoboth bay where it ultimately sank. (D.I. 64 at 1). The Plaintiff commenced this action alleging negligence against various Defendants. The only remaining Defendant is the Estate of Stekervetz (“the Estate”). The Plaintiff alleges that Mr. Stekervetz was negligent in failing to properly maintain his boat. Specifically, the Plaintiff alleges that Mr. Stekervetz failed to repair his boat’s defective wiring and ignored repeated warnings not to use the boat or its major appliances until extensive repairs to the wiring were made. (D.I. 98 at 2). The Estate contends that the Plaintiff has not met its burden of proof with respect to his negligence claim. Namely, the Defendant contends that Plaintiff has failed to prove the element of causation. Further, the Estate argues that the Plaintiff has not met his burden with respect to proving actual damages. II. Motions in Limine The Estate has made several motions in limine. As a result, the Court will address the motions prior to its discussion of negligence. A. Estate of Stekervetz’s Motion to Strike the Expert Testimony of Frank Gaworski (D.I. 120). 3 The Estate contends that the testimony1 of Plaintiff’s expert, Frank Gaworksi, should be excluded under Federal Rule of Evidence 702 (“Rule 702"). (D.I. 120 ¶ 7-8). Specifically, the Estate argues that since Mr. Gaworski has no experience in inspections of electrical wiring on boats and marine units, has no knowledge of the relevant codes or standards for electrical systems on marine vessels, has no post-highschool education, and has only ten hours of training on investigation of the cause and origins of fires, his testimony does not meet the standard set forth in Rule 702, and therefore, should be excluded. (D.I. 120). In response, the Plaintiff contends that Mr. Gaworski’s experience and the fact that he has made hundreds of cause and origin investigations for the State Fire Marshal for over a decade meets the standard under Rule 702 for the admission of expert testimony. Further, Plaintiff argues that all of the authority cited by the Estate to preclude Mr. Gaworski’s testimony involves cases in which the expert lacked the requisite training and experience in the particular field. (D.I. 122 at 1 In lieu of live testimony from Frank Gaworski, a deposition taken on August 8, 2001, in connection with a wrongful death action in Lancaster, Pennsylvania, arising out of the same fire, was admitted into evidence, without any further objection from the Defendant, but still subject to Defendant’s motion in limine to strike Mr. Gaworski’s testimony under Rule 702. Thus, Defendant’s Motion to Dismiss for Failure to Produce an Expert for Deposition (D.I. 118) will be denied as moot. 4 3). Finally, the Plaintiff contends that even if Defendant’s objection concerning Mr. Gaworski’s expertise is valid in any way, it should go to the weight of his testimony as opposed to its admissibility. (D.I. 122 at 3). Rule 702 governs the admissibility of expert testimony and provides: 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, 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; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)(discussing factors relevant to determining admissibility of expert testimony). Rule 702 provides "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability and fit." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). The first requirement of Rule 702 involves an inquiry as to whether the witness is qualified as an expert. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir. 1994). The second requirement involves an inquiry as to whether the expert's testimony is reliable. Id. at 742. “The final prong of Rule 702 requires that the expert testimony "fit" by assisting 5 the trier of fact.” ID Sec. Sys. Canada, Inc. v. Checkpoint Sys., 198 F. Supp. 2d 598, 602-603 (E.D. Pa. 2002) (citing Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000)). The Estate challenges Mr. Gaworski on the first requirement of Rule 702- that the proposed witness be an expert. The first prong of the Rule 702 analysis involves an inquiry into whether the proposed witness has sufficient knowledge, skill, training, education or experience to testify with authority on the particular issue on which he or she proposes to opine. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). The Third Circuit has held that “a broad range of knowledge, skills, and training" will qualify a witness as an expert and the court has “eschewed imposing overly rigorous requirements of expertise and [has] been satisfied with more generalized qualifications.” Id. Thus, the qualifications requirement of Rule 702 has been liberally construed in the Third Circuit. See, e.g., Holbrook v. Lykes Bros. Steamship Co., Inc., 80 F.3d 777, 781 (3d Cir. 1996); Hammond v. International Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982). According to his deposition testimony, Mr. Gaworski has worked with the Middle Department Inspection Agency for sixteen years, taught classes at the New Castle County Vocational School from 1986-1995 on residential wiring, commercial wiring and industrial motor controls, has his national certification in 6 residential wiring for code enforcement officials, is an instructor at the Middle Department Inspection Agency, and has taken a ten hour course at the University of Delaware for cause and origin of fire investigation. (Frank Gaworski Deposition (“Gaworski Dep.”) at 7-9). The Court concludes that given the liberal qualifications requirement under Rule 702, and the Third Circuit’s willingness to accept general qualifications, Mr. Gaworski has the proper experience, training and skill to opine about the electrical wiring on the Stekervetz vessel as a possible origin of the fire on September 2, 1997. Further, in the Court’s view, any deficiencies in Mr. Gaworski’s qualifications such as the fact that he has no experience in marine electrical wiring goes to the weight of his testimony rather than its admissibility. The Estate also challenges Mr. Gaworski’s factual basis to offer an opinion regarding the cause and origin of the boat fire. (D.I. 120 ¶¶ 8-9). However, in its motion, the Estate does not elaborate on this challenge, rather it merely alleges that Mr. Gaworski lacks the proper factual foundation to offer his proposed opinion on the cause of the fire and challenges the relevance and reliability of his opinion. Id. Thus, the Court will address the final two requirements under Rule 702. The factors which should be taken into account in regard to reliability, the second prong of Rule 702, are as follows: 7 (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.
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