govinfo:USCOURTS-njd-1_16-cv-00711-5

1 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
EDWARD SILIPENA, et al.,   : Hon. Joseph H. Rodriguez 
 
  Plaintiffs,    : Civil Action No. 16-711 
 
v.      : OPINION 
  
       :           
AMERICAN PULVERIZER CO., et al.,  
       : 
  Defendants.    
       : 
 
Presently before the Court are several motions challenging the admissibility of 
certain expert testimony. In general terms, this matter arises from two catastrophic fires 
that Plaintiffs allege caused approximately $50 million in damages and resulted in the 
total loss of their business in Millville, New Jersey. The first fire occurred April 22, 2012 
and the second occurred on December 8, 2012. Only the April 2012 fire is at issue in this 
case.1   
I. Background 
Plaintiffs are Edward Silipena and Joseph F. Silipena (the "Silipena Brothers"), 
American Iron & Metal International, LLC (“AIMI”), American Auto Salvage and 
Recycling, Inc. (“AASR”), Silipena Realty, LLC, and LJE Associates, LLC.  Plaintiffs 
bring claims against five defendants: American Pulverizer Company (“APCO”), Hustler 
Conveyor Company (“Hustler”), Pinnacle Engineering, Inc. (“Pinnacle”), Cooper & 
 
1 Plaintiffs’ motion to file a Second Amended Complaint to add the December 8, 2012 fire to their claim was 
denied on March 7, 2019. (Dkt. No. 143). 
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Associates, LLC (“Cooper”), and Eriez Manufacturing Company (“Eriez”).  (See 
generally Am. Compl., Dkt. No. 51.)  
Plaintiffs’ modern business venture started as a scrap metal recovery business 
and progressed into a sophisticated metal recycling business.  During that transition in 
2010-2011, the Plaintiffs’ portfolio came to include an indoor shredding and sorting 
metal recycling facility. (Am. Compl. at ¶¶33-34).  To facilitate the growth and 
expansion of their business to include specialized metal recycling, Plaintiff AASR 
entered into several, separate contracts with the Defendants for the intended purpose of 
installation of the shredding and sorting recycling system at AIMI.  
In late April 2011, Plaintiff AASR and Defendant APCO contracted for the 
purchase of a Model 60 x 85 shredding system. (See Golden Cert., Dkt. No. No. 229-4, 
Ex. D). The Silipena Brothers’ system of conveyors and separation equipment 
downstream from the shredder and was commissioned to operate inside a large 
warehouse.2 The process of recycling, shredding and sorting scrap metal includes a large 
shredder capable of reducing a full-size automobile into six inch or smaller pieces. This 
initial process causes the shredded material to pass through a magnetic separator that 
extracts the iron from the stream of shred material. What remains passes through 
metering equipment and separating equipment that further refine the shred material 
into three primary components Zorba, Zurik and Fluff.  Fluff is known to be flammable. 
 The contract with APCO set forth the Terms & Conditions and, importantly, 
provided for the purchase of certain machinery and parts from Defendants Hustler and 
 
2 There is no dispute that the Eriez machinery was not  custom-made for the warehouse  facility. (Barber 
Cert., Shapiro dep., Ex. I, pp. 385:24 to 386:2.) 
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Eriez. (See id.)  Defendant Hustler provided various conveyors for the subject facility, 
including a “tumbleback conveyor,” which acts as a metering conveyor, and assisted 
with implementation of the downstream system. (See id.) Defendant Eriez provided 
various sorting equipment, including the ProSort II (“ProSort”),  for the downstream 
part of the system that separates materials being shredded into various ferrous and non-
ferrous materials to be collected and sold.  Defendant Hustler Conveyor Company and 
its related company, Defendant American Pulverizer Company, purchased the Eriez 
equipment and with American Pulverizer, incorporated the equipment into Plaintiffs’ 
shredding facility.   
In January 2011, Plaintiff AASR and Defendant Cooper separately contracted for 
services including engineering, design, equipment specifications and construction 
specifications required to install the shredder and associated equipment. (See id., Ex. F, 
at § II).  Plaintiff AASR also contracted with Defendant Pinnacle to build a 
programmable logic controller to control the operation, collect data and provide 
integration of the controls to operate the feed of material. (See Exs. D, F, G and H at 
456:22-457:15.2 15).  
Essentially, Plaintiffs sought to capitalize on the scrap metal generated from its 
initial junk yard business, where motor vehicles and other metal products were 
collected, by selling it to its other business, AIMI.  At AIMI, the scrap materials were 
reduced further and sorted for sale to separate third party businesses. (Golden Cert., 
Dkt. No. 229-5, Ex. I, E. Silipena Dep. at 31:3-13).  Plaintiffs allege certain defects in the 
automobile shredding and sorting system (the “System”) caused two significant fires at 
Plaintiffs’ Millville, New Jersey facility. The fires at Plaintiffs’ facility allegedly 
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originated in a pile of “Zurik,” a known byproduct of the System. Plaintiffs allege that 
that Defendants defectively designed the System and seek to prosecute their case by 
demonstrating, inter alia, Defendants’ awareness that Zurik posed a fire risk and then 
failed to accommodate that risk in the design and installation process. 
Plaintiffs’ claims include product liability, negligence, breach of contract, breach 
of warranty, and breach of the implied covenant of good faith and fair dealing. (Am. 
Compl., Dkt. No. 51) In the Amended Complaint, Plaintiffs allege that absent the defects 
in the System and other failures of Defendants to perform their duties, the fire(s) 
occurring at their facility would not have occurred nor the resulting sale of the 
businesses and other damages. (Id.)3  
The present motions are brought by the Defendants, separately, to challenge 
Plaintiffs’ experts, Patrick McGinley (“McGinley”), Daniel Shapiro (“Shapiro”), 
Christopher Brophy (“Brophy”), and Victor Popp (“Popp”).  As to McGinley, who is 
offered as Plaintiffs’ fire and causation expert, Defendants APCO and Hustler [Dkt. No. 
225] and Defendant Eriez [Dkt. No. 238]  move to preclude his report and testimony on 
reliability and fitness grounds, because it is predicated upon on his own subjective 
beliefs and unsupported speculation.   
Shapiro is offered as a liability expert
 in the shredding and sorting industry and is 
highly familiar with recycling systems, including the System that Defendants collectively 
delivered to Plaintiffs.  Defendants APCO and Hustler [Dkt. No. 228], Cooper [Dkt. No. 
 
3 Plaintiffs’ AIMI business contracted with Defendant American Pulverizer to design and install the System.  
To do this, American Pulverizer used equipment manufactured by its sister company, Defendant Hustler 
Conveyor Company.  In addition, American Pulverizer incorporated "component parts" sold by Defendant 
Eriez to Hustler. 
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230], Eriez [Dkt. No. 239], and Pinnacle [Dkt. No. 240], all separately move for largely 
similar reasons to preclude Shapiro’s testimony and his report.4  
Brophy is offered as Plaintiffs’ damages expert. APCO and Hustler [Dkt. No. 231] 
and Eriez [Dkt. No. 236] move on similar grounds to preclude his report and testimony.  
Finally, as to Popp, a professional engineer, Cooper moves [Dkt. No. 226] to preclude 
his testimony and report asserting lack of reliability and fit.  Cooper asserts that Popp’s 
opinions are nothing more than net opinions which fail to satisfy their burden of proof 
as to standard of care of a professional engineer, breach of that standard of care and 
proximate cause for damages alleged in this matter.  
The Court has considered the written submissions of the parties and the 
arguments advanced at the hearing on June 9, 2021.  For the reasons expressed on the 
record that day, as well as those that follow, the motions are denied, but granted in part 
as to Christopher Brophy. 
II. Federal Rule of Evidence 702 and Daubert 
The guiding principles that inform the Court's judgment are found in Federal 
Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 
2786, 125 L.Ed.2d 469 (1993). Federal Rule of Evidence 702 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) 
 
4 In a related motion, Plaintiffs move to strike  all the Defense Motions , filed separately,  challenging the 
experts filed as docket numbers 225, 226, 228, 230, 231, 236, 239, 240 , 243 and 250.  [Dkt. No 271] .  In 
addition, Plaintiffs seek to strike Defendants’ separate summary judgment motions filed at docket numbers 
227, 229, 232, 235, and 241. The Court has considered the arguments as they relate to the motions 
challenging the experts and will, for reasons that follow, deny Plaintiffs’ Motion to Strike Defendants’ 
Motions as they relate to the experts. 
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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.  
Consistent with that Rule, Daubert established a “trilogy of restrictions” on the 
admissibility of expert testimony relating to scientific knowledge. See Calhoun v. 
Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003).  This “trilogy” consists of 
“qualification, reliability and fit.” Id. The Third Circuit liberally construes the 
qualifications of an expert, noting that “a broad range of knowledge, skills, and training 
will qualify a witness as an expert ...” See Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 
470, 495 (D.N.J. 2002) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d 
Cir. 1994) (“Paoli II” )) (internal quotations omitted).  
With respect to reliability, the focus is on the “principles and methodology, not 
on the conclusions that they generate.” Daubert, 509 U.S. at 595. Four benchmarks help 
determine whether a theory or technique qualifies as “scientific knowledge” such that it 
will assist the trier of fact. See Daubert, 509 U.S. at 593. The Court considers: (1) 
whether the theory can be or has been tested; (2) whether the theory or technique has 
been subjected to peer review and/or publication; (3) the rate of error; and (4) whether 
the theory or technique has been generally accepted within the putative expert's 
respective community. Id. at 593– 94. The Third Circuit adds other factors, including: 
(5) the existence and maintenance of standards controlling the technique's operation; 
(6) the relationship of the technique to methods which have been established to be 
reliable; (7) the qualifications of the expert testifying based on the methodology; and (8) 
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the non-judicial uses to which the method has been put. Paoli II, 35 F.3d at 742 n. 8. 
When considering these factors, the Court's inquiry must be a “flexible one.” Id. 
As for the third prong, Rule 702 requires that the “proffered expert testimony 
must ‘fit’ within the facts of the case.” Yarchak, at 208 F.Supp.2d at 496. The fit 
requirement mandates that the testimony “in fact assist the jury, by providing it with 
relevant information, necessary for a reasoned decision of the case.” Id. (citing 
Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 595 (D.N.J. 
2002)). Thus, even if an expert is qualified and relies on sound methodology, he must 
still “apply this expertise to the matter at hand.” See Calhoun, 350 F.3d at 324. These 
factors are not exclusive. They “are intended to serve only as ‘useful guideposts, not 
dispositive hurdles that a party must overcome in order to have expert testimony 
admitted.’ ” Yarchak, 208 F.Supp.2d at 495 (quoting Heller v. Shaw Industries, Inc., 
167 F. 3d 146, 152 (3d Cir. 1999)).  With the help of these guideposts, the Court performs 
its essential gatekeeper role under Federal Rules of Evidence 702.  
III. Discussion 
A. Patrick J. McGinley 
Plaintiffs offer Patrick J. McGinley as a fire cause and origin investigator and 
expert.
5  McGinley is a former Chief Fire Marshal for the City of Philadelphia and has 
over 5o years of experience in the fire fighting and fire investigation field. During that 
 
5 McGinley was initially retained as a rebuttal expert on the opinions issued by defense expert James 
Gallagher, also a fire causation and origin witness.  Plaintiffs’ initial fire cause and origin expert, Robert 
Malanga became ill and unable to issue a rebuttal report.  Plaintiffs were given leave to utilize McGinley as 
their principal fire cause and origin expert  and as a rebuttal expert  to Gallagher. Thus, McGinley’s expert 
report takes on the posture of his engagement as a rebuttal expert and leans heavily on attacking Gallagher’s 
opinions. Defendants argue that McGinley’s report, therefore, fails to offer support for his own conclusions, 
especially his opinion that spontaneous combustion occurred.  
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time, he has personally investigated over 10,000 fires and is a member of the committee 
that authored the Standard for Professional Qualifications for Fire Investigators.  
McGinley issued an expert report dated August 29, 2019.  The purpose of that 
report was to rebut the report of jointly retained defense expert James F. Gallagher. 
(Golden Cert. Dkt. No. 225-5, Ex. W).  In that report, McGinley opines that both fires at 
Plaintiffs’ Millville, New Jersey facility were the result of spontaneous combustion.  
My thorough investigation of all of the documents relative to this event 
clearly identified the area of origin of fire as the storage bins containing 
Zurik materials (which included a percentage of unsorted Fluff) positioned 
adjacent to the E riez Pro-Sort (April 22, 2012 fire) and along the exterior 
walls of the facility (December 8, 2012). These areas were identified 
specifically in the fire reports generated by the Millville Fire Department on 
both events and were not contradicted by any of the testimony I reviewed, 
either in depositions or reports. 
(Id.).  
McGinley offers, as a challenge to Gallagher's report, an explanation of the factors 
informing his spontaneous combustion theory.  
[Gallagher’s opinions on the] likelihood that spontaneous combustion 
occurred is flawed. Throughout the rest of that paragraph he explains that 
the likelihood of spontaneou s combustion is flawed because the 
composition of the pre - fire material was below ten feet (10') and not 
representative of solidified ASR dust. This comment is another indicator of 
the lack of experience, knowledge, training and certification in fire 
investigation. The height of the pile of material in a spontaneous 
combustion event is certainly one (1) of the factors to be considered, but 
only one (1) of the factors. The truth is that there are numerous factors that 
influence the exothermic heating and the ultimate spontaneous combustion 
of these materials and while the height of the pile is a consideration, it is not 
a single consideration. The thought that spontaneous combustion fires 
cannot occur in these materials that are less than ten feet (10') high  is 
beyond ludicrous. This view is also not supported by a plain reading of the 
literature that Mr. Gallagher attempts to critique by selectively citing while 
conveniently disregarding the data that demonstrates spontaneous 
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combustion can occur at almost any pile height (including those under ten 
feet (10')). 
(Id.)  
Defendants Eriez, APCO and Hustler argue that McGinley should be precluded 
from testifying at trial and his opinion be stricken because his opinion is unreliable and 
his testimony does not fit within the case.  Notably, Defendants APCO and Hustler 
initially challenged McGinley’s qualifications in their joint motion, but at oral argument 
conceded that McGinley’s qualifications are not at issue.  Defendants first argue that 
McGinley’s opinion is unreliable because he fails to support his bald assertions and 
conclusory statement that spontaneous combustion is the “appropriate conclusion.”  
 Specifically, McGinley fails to identify in his report what the other “numerous 
factors” are that contribute to spontaneous combustion, fails to consider and then 
eliminate any alternative causes, and does not identify other factors that should be 
considered, analyzed, or tested. (Id. at p. 6, ¶5).  Defendants further claims that 
McGinley’ statement about Zurik piles fails to include information about the actual size 
of the subject pile.  
Defendants also challenge whether McGinley utilized an accepted methodology to 
arrive at  his conclusions and whether it is testable or was tested.  According to 
Defendants, McGinley only casually mentioned the NFPA 921
6 methodology in one of 
his conclusions, in defense of Plaintiffs’ withdrawn expert Robert Malanga, but offers 
nothing regarding that method to support his own conclusions. Defendants claim that 
 
6 “NFPA” stands for the National Fire Protection Association .  The document number “921” refers to th e 
primary accepted document concerning fire investigations.  The parties do not dispute that is an accepted 
method within the fire causation and origin industry.  
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his opinion offends Daubert because it fails to put forth a method which has been or can 
be tested, has been subjected to peer review and publication, has a known or potential 
error rate, accounts for the maintenance of standards and is widely accepted in the 
community. Daubert, 509 U.S. at 593-95. To the extent that McGinley utilized the  
NFPA 921 standard, Defendants argue that there is no evidence in his report to suggest 
that the standard was appropriately applied to the circumstances and evidence of this 
case. See Paoli II, 35 F.3d at 745.    
Significantly, Defendants agree that NFPA 921 is a generally accepted 
methodology but offer selective deposition testimony to demonstrate that any indicia of 
reliability of McGinley’s opinions are lacking.  During deposition, McGinley agrees his 
research was limited to those materials provided to him—  he did not perform any 
independent research.  
Q. Did you do any research to identify any articles in order to support 
your opinions in this case? 
A. No, sir. I read the ones that were provided to me. 
Q. Okay [. . .] Did you perform any self-directed research? 
A. No, I did not, sir. 
 
(Golden Cert, 225-5, Ex. X, at 76:1-5). 
In addition, Defendants questioned whether McGinley could provide factual 
support for his supposition that there are “numerous factors to be considered” in 
concluding that spontaneous combustion occurred. Defendants agree that McGinley was 
able to identify several factors but argue he conceded that he was unaware of the facts 
necessary to evaluate those factors in this case. (see id. at 279:17-280:23). 
Q. Do you know what the density of the zurik pile was on April 22nd, 2012? 
A. Do what I know the density was? 
Q. Yes, please. 
A. What do you mean by density? 
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Q. How heavy per square -- let's use per square foot. 
A. I don't know. 
Q. How much it weighed per square foot? 
A. I don't know. 
Q. Would that make a difference in whether it could be subject to 
spontaneous combustion? 
A. Possibly, it would be one of factors that I told you. 
Q. How long does spontaneous combustion take? 
Q. The question is: What was the exothermic action that was the start of the 
spontaneous combustion? 
A.  It was the -- the heating -- from what I've read, it sounds to me like it was 
the heating of the fluff as a result of a combination of  factors; the pressure 
brought about by the dimension of the pile, the airflow that was present, the 
temperature produced as it went in the  ambient temperature outside and 
the articulates. I think one of the metallurgic engineer s would be  able to 
explain that much better for you, sir. That's not my area of expertise. 
Q. So if I understand what you just said in -- what you said earlier, those are 
-- we don't  know the pile height, we don't know the pile width,  we don't 
know the pile length, you don't know the density of the pile, you don't know 
the composition of the pile. Correct? 
A. You left out the heat of the material going in. 
Q. The heat -- you don't know -- 
A. Other than that. 
Q. -- you don't know any of those things? 
A. The only thing we know for sure is that  they were present and 
spontaneous combustion occurred. 
Q. The only thing we know is that you -- spontaneous combustion occurred 
but you don't know  the factors -- any of the factors that you enumerated 
before? 
Q. Excuse me. You don't know the values of any of the factors? 
A. You never can do that with a spontaneous combustion fire. What you do 
is, you look at the  area where the fire originated that was clearly  identified 
in the fire reports and you check  potential scenarios in the -- the ignition 
scenarios in the area; and surprise, surprise, we got a pile of material here 
that is starting fires all over the country in that -- that material coming out 
of these shredders. 
Q. I'm talking about this fire. 
A. I'm talking about this fire. 
 
(Id. at 279-280). 
Although McGinley testified that in determining whether spontaneous 
combustion occurred, factors such as the size and temperature of the pile, propensity of 
the material to generate heat during the storage process rather than absorbing heat, and 
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the size of the particulate and airflow must be considered, Defendants argue that 
McGinley could not articulate the value of that information as it relates the fire at issue.  
(See id. at 188:9-195:19). In short, Defendants argue that McGinley was speculating, 
rather than calculating. For these reasons, and because McGinley failed to perform his 
own testing, Defendants move to preclude his testimony and findings.  
As Plaintiffs rightly argue, McGinley considered substantial materials in 
preparation for his deposition, and followed the NFPA 921 investigation protocols. 
McGinley’s opinions are also bolstered by his years of fire service, education, and 
experience.  
Having had the opportuni ty to carefully review all of the above listed 
material, and drawing on years of fire service and experience and education, 
I have arrived at the following opinions and conclusions based upon a 
reasonable degree of certainty in the field of fire investigat ion. My 
investigation into this matter was conducted in conformance with the 
recommendations of NFPA (National Fire Protection Association) 
document number 921.  
(Golden Cert., Dkt. No. 225-5, Ex. W). 
 
McGinley’s consideration of the fires also evaluated “[the h]istory of the material, 
history of fire events, observations by the first arriving firefighters and the fires of the 
piles, the burn pattern intimating internal heat of the pile almost to floor level rather 
than exposure to external fire which would've given you a surface type event[.]” (Fidanza 
Cert., Dkt. No. 261-2, Ex. L at 148:13- 21).  Drawing on his years of experience and 
education, McGinley further states that his opinion was formed upon consideration of 
“the fire history, the number of events identical to those in similar circumstances, the 
lack of plausible alternative causes, and the NFPA information…”  (Id. at 305:12-15). 
McGinley also stated that the unknown values of the materials at play in the fires was 
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not determinative because, based upon his review of the case materials, “[the material] 
had the propensity to give off heat and to cause fires.” (Golden Cert. Dkt. No. 225-29, at 
191:8-17) Moreover, McGinley considered the process of exothermic heating giving rise 
to the overall spontaneous combustion event. (Id. at 279:4-13).  
 The fact that McGinley did not conduct his own testing does not disqualify his 
opinion or render it unreliable.  Experts routinely rely upon and evaluate the work of 
others in arriving at their conclusions. Medina v. Daimler Trucks N. Am., LLC, No. 
CIV.A. 10-623 JLL, 2014 WL 7405210, at *5 (D.N.J. Dec. 30, 2014) (citing United States 
v. Arias, 678 F.2d 1202, 1206 (4th Cir. 1982), cert. denied, 495 U.S. 910 (1982) (“This 
does not mean that an expert must rely solely on his own work, but he can rely on 
another's information or work, if it is of the type normally relied upon by an expert in 
the course of his work.”); Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 
(7th Cir. 2002) (explaining that an expert may apply the results of another expert's 
calculations if a proper foundation is laid.)).  Federal Rule of Evidence 703 permits an 
expert to formulate an opinion based on facts or data that he did not personally observe. 
Fed. R. Evid. 703 (“An expert may base an opinion on facts or data in the case that the 
expert has been made aware of or personally observed.”) (emphasis added). The Rule's 
Advisory Committee explained that one of the possible sources of “facts or data” an 
expert may rely on to form his or her opinion is data gathered “outside of court and 
other than by his [or her] own perception.” Fed.R.Evid. 703, Advisory Committee Notes. 
Moreover, McGinley’s hypothesis can be the product of deductive reasoning, or 
cognitive consideration, as opposed to conducting his own experiments. Medina, 2014 
WL 7405210, at *8 (citing Kozar v. Sharp Electronics Corp., No. 04– 901, 2005 WL 
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2456227, at *2 (W.D.Pa. Sept.30, 2005) (quoting National Fire Protection Agency, 
User's Manual for NFPA 921: Guide for Fire and Explosion Investigations, § 4.3.6). 
Medina v. Daimler Trucks N. Am., LLC, No. CIV.A. 10-623 JLL, 2014 WL 7405210, at 
*8 (D.N.J. Dec. 30, 2014)). 
The Court finds that Defendants arguments for excluding McGinley are 
insufficient. McGinley employed the universally accepted NFPA 921 methodology and 
he applied that methodology to the facts of this case.  He also used deductive reasoning7, 
which is an acceptable and widely used approach to determine fire causation. “NFPA 
921 makes clear that an expert may test his or her hypothesis either cognitively or 
experimentally.” Medina, 2014 WL 7405210, at *8 (emphasis added); see also State 
Farm Fire & Cas. Co. v. Holmes Prod., 165 F. App’x 182, 186 (3d Cir. 2006) (citing 
Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1138 (3d Cir. 1983) (“Where a fire 
investigator identifies the cause of fire . . . by eliminating all but one reasonable 
potential cause, such testimony is highly probative”)). 
Of course, McGinley will be subject to rigorous cross examination.  Alleged flaws 
in McGinley’s cognitive application
8 of the NFPA 921 method or his consideration of 
 
7 McGinley considered other potential causes of the accident and then eliminated them : (1) a broken light 
fixture; (2) arson; (3) incendiary causes; (4) a piece of hot metal in the pile; (5) a cigarette; and (6) 
housekeeping/extraneous materials. (Fidanza Cert., Dkt. No. 261 -2, Ex. L at 51:1 -9; 130:3-13; 51:10-52:6; 
127:3-8; 178:18-179:9; 270:17- 271:6; 184:3-185:25; 212:7-20; 197:18-199:11; 296:13-21; and 202:7-13.) He 
also considered the “absence of other ignition scenarios.” (Id. at 49:10-19; 282:1-11). 
 
8 The NFPA 921 Manual recognizes the probative value of cognitive testing: 
 
[D]uring the testing and analysis of a hypothesis, the investigator will cognitively test the 
hypothesis on the basis of his or her knowledge and experience. Cognitive testing is the use 
of a person’s thinking skills and judgment to evaluate the empirical data and challenge the 
conclusions of the final hypothesis.  
 
Great N. Ins. Co. v. Ruiz , 688 F.Supp.2d 1362, 1373 (S.D.Ga.  2010) (quoting National Fire Protection 
Agency, User's Manual for NFPA 921: Guide for Fire and Explosion Investig ations 17 (2005).  
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what Defendants deem to be concessions do not warrant his exclusion. Given the 
flexibility afforded to the Court at this stage, McGinley’s particularized fire experience 
and expertise, coupled with the volume of evidence he considered, are sufficient to 
establish his opinion’s reliability and fit.  “Vigorous cross-examination, presentation of 
contrary evidence, and careful instruction on the burden of proof are the traditional and 
appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 
596 (citation omitted). The jury will consider which evidence to accept or reject.  
B. Daniel J. Shapiro 
There are four motions that challenge Plaintiffs’ Expert Daniel J. Shapiro: Motion 
to Preclude Plaintiffs' Expert Report/Testimony of Daniel Shapiro by APCO and Hustler 
[Dkt. No. 228],  Motion in Limine to Bar Testimony of Plaintiffs' Expert Daniel Shapiro 
at the Time of Trial by Cooper [Dkt. No. 230], Motion to Strike Plaintiffs' Expert Daniel 
J. Shapiro by Eriez [Dkt. No. 239], and Motion to Preclude Testimony and Report of 
Plaintiff's Liability Expert D. Shapiro by Pinnacle [Dkt. No. 240].    
Defendants move to preclude the testimony and report of Daniel Shapiro on 
several grounds, including, inter alia, because he is not qualified to testify as a fire 
causation expert, his opinion is an impermissible net opinion and/or does not fit 
because it will not help the factfinder, and his opinions are unreliable because he fails to 
employ an accepted methodology.  
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Shapiro has significant experience in the scrap metal recycling business, as an 
owner, manager, and consultant.  In his eighty-eight-page initial Report9, Shapiro 
describes his experience as follows: 
I have been active in the scrap metal recycling industry for over forty‐three 
(43) years in every conceivable capacity from outside sales representative, 
to shift supervisor, to owner/operator. I have spent the past fifteen (15) 
years as a consultant, predominantly, though not exclusively, to the scrap 
metal industry. A significant portion of that experience has been focused 
on the automobile shredding, or steel fragmentizing, processing activities 
of numerous plants. 
(Golden Cert. Dkt. No. 228-5, Ex. E, p.5). 
During his lengthy association with the scrap metal industry, Shapiro has 
appeared in other litigations as an expert witness on the topic of shredding and sorting 
facilities. (see, Shapiro Curriculum Vitae, App’x H to Shapiro Report; Fidanza Cert. Dkt. 
No. 261-2, Ex. R. at 1023:12-17). Shapiro has never been excluded as an expert witness. 
(Id.). 
Here, Shapiro was retained to provide expert witness services “regarding the 
automobile shredding and sorting industry including, but not limited to, the operation, 
operational design and safety issues related to the metal shredding and sorting system
 
purchased for and installed at [AIMI].” (Golden Cert., Dkt. No. 228-5, Ex. E, p.5). In 
that capacity, Shapiro includes a summary of his opinions in his Report: 
10. Based on my review and analysis of the facts, data, and other 
information made available to me, it is my opinion that the automobile 
shredding and sorting system (the “System”) that was sold to AIMI and 
designed and manufactured through the collective efforts of Defendants 
American Pulverizer Company (“APCO”), Hustler Conveyor Company 
(“Hustler”), Eriez Manufacturing Company (“Eriez”), Pinnacle Engineering 
Company (“Pinnacle”), and Cooper and Associates, LLC (“Cooper”), was 
 
9 Shapiro has issued two reports.  The first on July 23, 2018 and then a rebuttal report on August 30, 2019.  
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unsafe for its intended purpo se because it was not capable of safely 
shredding and sorting the promised capacity of metal without causing a fire.  
11. Each of the Defendants took an active role in the design of the overall 
System. APCO, Hustler, Eriez, and Pinnacle each participated in the design 
of the System and also manufactured component parts of the System. 
Cooper did not manufacture parts of the System, but it did play an active 
role in the design and implementation of the System.  
12. Of significance here, the Defendants regularly communicated with each 
other, and were each aware that the System was being designed such that 
its downstream would be housed indoors and under roof. The Defendants 
represented themselves as being experienced and competent professionals 
in their respective fields, capable of creating the System that AIMI desired, 
within the requested indoor parameters. However, the System was 
ultimately designed and manufactured with several significant defects that 
rendered it unsafe for its ordinary purpose, and which ultimately led to the 
fires that Plaintiffs seek to now recover from. 
13. The System was unreasonably unsafe for at least the following reasons: 
(1) the System failed to incorporate a non‐ferrous bypass into its design; (2) 
the System ’s non ‐ferrous downstr eam was incapable of processing the 
volume of material that was produced by the shredder; (3) the Zurik output 
bins were designed to be housed in a foreseeably dangerous indoor location; 
(4) the System was manufactured defectively such that it could not pr ocess 
the promised 80 tons ‐per‐hour of infeed material; (5) the System failed to 
contain adequate warnings about the known risk of fire associated with 
Zurik; and (6) the System failed to contain adequate warnings about the 
increase in the fire risk associated with Zurik that would result from 
increasing the speed of the Tumbleback metering conveyer (“Tumbleback”). 
(Golden Cert, Ex. E., pp. 8-9).  
Shapiro is not a professional engineer.  In general terms, Shapiro’s expertise 
comes from his lifetime of vast and intimate experience with sorting and shredding 
machines.
10  Plaintiffs aver that Shapiro has significant responsibility for safety issues 
 
10 It is not disputed that Shapiro  has over forty - years of experience, including twelve years as an 
owner/operator of a shreddin g and sorting facility .  He spent fifteen years as a manager prior to his 
ownership and an additional fifteen years  and as an industry consultant .  (Shapiro Report, Ex. E, Dkt. No. 
231-10, at 6;  Shapiro Dep. Vol. 1, at 163:17- 20.) Shapiro is an active member an active member  of the 
Institute of Scrap Recycling Industries professional association  and avers that he has personally toured 
fifteen metal shredding and sorting facilities in North America; he has reviewed the engineering plans of at 
least five other facilities). (Shapiro Report, Ex. E, Dkt. No. 231-10, at 8) He has also designed the installation 
of a shredding and sorting facility, including its physical layout on the property and how it would be 
configured. (Id.) 
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related to sorting and shredding facilities. (Golden Cert. Dkt. No. 228-5, Ex. E, pp. 5-6). 
As a result of his life’s work, Shapiro is very familiar with and possesses a deep 
understanding of the design and construction of shredding and sorting facilities and the 
local, state and federal regulatory issues associated with in the scrap metal recycling 
industry. (Id.)  In addition to his personal experiences, Shapiro reviewed the 
voluminous discovery in this case, including deposition transcripts, design plans, 
images, System-related data, and video footage. (Id.)  He met with Plaintiffs, consulted 
relevant industry publications and scientific literature and drew on his own experiences 
in the industry to formulate his opinions as set forth in his initial Report and his thirty-
four-page rebuttal report. (Id.). In short, Shapiro concluded that the System “was unsafe 
for its intended purposes because it was not capable of safely shredding and sorting the 
promised capacity of metal without causing a fire.” (Id.)   
Defendants’ arguments to preclude Shapiro’s testimony are made separately but 
overlap in most respects.  One important distinction, however, comes from the 
Defendants’ arguments concerning Shapiro’s qualifications.  Defendants Pinnacle and 
Cooper are engineering firms and argue that Shapiro is not qualified to testify as to the 
standard of care of a professional engineer and therefore cannot opine on their alleged 
liability.  APCO and Hustler and Eriez also challenge Shapiro on separate qualification 
bases. 
Relevant here, Plaintiffs allege negligent design and manufacturing defects, and 
failure to warn claims against Pinnacle for its role in manufacturing a control panel for 
the System.  Pinnacle and Cooper argue that Shapiro is not qualified to issue opinions 
regarding the professional services rendered by a licensed professional engineer or 
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engineering firm. Cooper moves to strike any opinions that speak to the standard of care 
or performance of Cooper’s services and to bar Shapiro from testifying regarding 
allegedly negligent services performed by Cooper on this project. 
Pinnacle is alleged to have deviated from acceptable standards of care in the 
design, manufacturing and sale of the products, mainly the control panel, used in an 
automobile shredding and sorting system.
 It argues that Shapiro cannot opine as to the 
negligent design or manufacturing defects regarding the panel and/or that the panel is 
unfit for its intended use because he is not a licensed engineer.  
Defendant Eriez argues that Shapiro is not qualified to testify about the cause of 
the fire or that any design defect in the shredding and sorting system increased the risk 
of a fire. APCO and Hustler argue that Shapiro cannot testify as a fire expert and make a 
more generalized attack of Shapiro’s qualifications.  In short, they argue that because 
Shapiro is not a fire expert his opinions relating to the cause fire and the Systems’ risk of 
spontaneous combustion must be stricken.  
Shapiro need not possess a professional degree to qualify as an expert in this 
case.  Under Daubert, the qualification standards are interpreted liberally and require 
only “that the witness possess specialized expertise.” Paoli II, 35 F.3d at 741.   Thus, “a 
broad range of knowledge, skills, and training qualify an expert as such.” Id.; Calhoun v. 
Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003). As such, exclusion of an 
expert witness is “improper simply because an expert does not have the most 
appropriate degree of training.” Yarchak, 208 F.Supp.2d at 495 (quoting Diaz v. 
Johnson Matthey, Inc., 893 F.Supp. 358, 372 (D.N.J. 1995)).
 In addition, under Rule 
702, an expert's methodology may be informed by “personal knowledge or experience.” 
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Kumho, 526 U.S. at 150; see also United States v. Ford, 481 F.3d 215, 219 (3d Cir. 
2007); Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 
155, 165 (D.N.J. 2008) (experts can testify based upon personal experience).  
The qualification prong of admissibility simply considers whether an expert is 
qualified “to render an opinion when he or she ‘possesses specialized expertise.’” In re 
Human Tissue Prods. Liability Litig., 582 F. Supp. 2d 644, 655 (D.N.J. 2008) (quoting 
Pineda v. Ford Motor Corp., 520 F.3d 237, 244 (3d Cir. 2008). The criteria required to 
qualify an expert turn largely upon the subject matter of the opinion to be offered. 
Kerrigan v. Maxon Ind., 223 F. Supp. 2d 626, 635 (E.D. Pa. 2002). “[I]f the expert 
meets the liberal, minimum qualifications then the level of the expert’s expertise goes to 
credibility and weight, not admissibility.” Kannankeril v. Terminix Int’l Inc., 128 F.3d 
802, 809 (3d Cir. 1997)(citing Paoli, 35 F.3d at 741).  
Defendants’ collective challenges to Shapiro’s qualifications go to weight rather 
than admissibility and, therefore, miss the mark. First, Shapiro has not offered opinions 
about the engineering standard of care and has not been retained in that capacity. 
Shapiro admits as much in his deposition and report. (Shapiro Dep., Ex. B, at 48:22-
49:4; 357:18-24; Shapiro Rep., Ex. E, Dkt. 231-10, at ¶¶ 10-13).
11  Plaintiffs offered a 
different expert regarding the engineering standard of care, Victor Popp, who is the 
subject of separate motions to preclude. Shapiro’s educational and professional 
 
11 For example, Cooper alleges that the services described in paragraphs 87, 88 and 89 of Shapiro’s Report 
describe Cooper’s professional engineering services. ( See Exhibit K –  Deposition Transcript of  Daniel J. 
Shapiro 9/17/2019 T531:23-532:13, T532:23-533:7, and T533:15-23). Shapiro agrees and does not dispute 
this allegation.(Id.) However, Shapiro merely details the services of Cooper without comment on the degree 
to which they deviate from the standard of professional care.  Shapiro is detailing the relationship and 
responsibilities of the parties and not offering an expert opinion.   
 
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credentials are not consequential to his qualifications to opine on the sorting and 
shredding industry and the System’s operations and safety features given his various 
roles in and specialized knowledge of the industry.  
During deposition, Shapiro agreed that he is not opining on the specific cause of 
the fire that occurred in this case and that he does not have the expertise to make that 
determination. (Clark Cert., Dkt. No. 240-2, Ex. F, 827:5-9; Barber Cert., Dkt. No. 239-
1, Ex. I, 9:13-10:20, 11:3-18, 49:1-25, 174:9-175:15, 177:10-178:14, 248:9-10, 356:5-24, 
371:21-372:1, 419:11- 14.) Shapiro states, “I’m not offering an opinion on causation[]” 
and clarified that he is not a causation expert. (Barber Cert. Dkt. No. 239-1, 177:10-
178:14).  Shapiro’s conclusions captured in paragraph 10 of his report conclude that 
System “was unsafe for its intended purposes because it was not capable of safely 
shredding and sorting the promised capacity of metal without causing a fire[.]”  But 
Shapiro does not go further in linking the potential to the cause of the fire at issue.12  As 
he states, his “report opines on conditions that could lead to the situation that occurred” 
but do not speak to the ultimate issue. (Shapiro Dep., Ex. B., at 48:22-49:4; 49:23-25; 
174:24-175:3).  
The Court finds that Shapiro has demonstrated the minimum qualifications to 
testify as an expert in this matter consistent with the liberal application of FED. R. 
EVID. 702.  Shapiro’s specialized knowledge of the shredding and sorting industry and 
systems, which is a small and unique area of industry, and his own practical experience 
inform the issues in this case. Hammond v. International Harvester Co., 691 F.2d 646, 
 
12 Shapiro goes further and states that paragraph 10 is not conclusive; it is simply an overview of his 
opinion. (Shapiro Dep., Exhibit I, p. 725:7-9). 
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653 (3d Cir.1982) (“[U]nder Rule 702, an individual need possess no special academic 
credentials to serve as an expert witness....'[P]ractical experience as well as academic 
training and credentials may be the basis of qualification(as an expert witness); see also 
Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000)).  Shapiro was retained to 
provide expert witness services “regarding the automobile shredding and sorting 
industry including, but not limited to, the operation, operational design and safety 
issues related to the metal shredding and sorting system” at issue in this case. (Shapiro 
Report, Ex E, Dkt. No. 231-10, at ¶ 1; Shapiro Dep. Ex. C, at 381:17-382:2.) Shapiro’s 
specialized knowledge and qualifications to opine on the functionality and design of the 
system do not touch on the engineering standard of care and fall within the “broad 
range of knowledge, skills, and training [to] qualify a witness as an expert ...[.]” 
Yarchak, 208 F.Supp.2d at 495 (quoting Paoli II, 35 F.3d at 741 (internal quotations 
omitted)).  For these reasons, the motions to preclude Shapiro based on his 
qualifications are denied.
13 
In addition, the Court finds that Shapiro’s opinions fit, would aid the trier of fact, 
and are reliable. Defendants allege Shapiro’s opinions lack foundation, are not the 
product of acceptable methodology, scientific research or testing, and would not aid the 
jury. The claims against Cooper and Pinnacle arise out of, inter alia, negligent design 
and manufacturing defects, failure to warn and breach of contract.  Because both 
entities are licensed professionals, they claim any alleged deviation from acceptable 
standards and performance is lacking scientific proof that the product is unfit for its 
 
13 Defendants’ do not challenge Shapiro’s qualifications to opine on the shredding and sorting industry.   
Defendants’ challenges center on Shapiro’s ability to testify as to causation and the standard of care for 
engineering services, which Shapiro admits and the Court finds he cannot and does not do.  Shapiro can 
testify as to the function and design of the System from his personal experience.  
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intended use. The Court has already determined that Shapiro does not opine on the 
professional standard of care and is not offered as a causation expert. 
Thus, the remainder of the challenges to Shapiro focus on his methodology, 
which Defendants argue cannot be tested in a lab, and consists solely of Shapiro’s 
experience, review of transcripts, documents and literature related to the recycling 
industry.  Defendants also take issue with the foundation for Shapiro’s proposed  
warning.  Shapiro agreed in deposition that he has not seen a warning such as the one 
he proposed.  He also agrees that his warning does not bear the imprimatur of any 
standard setting group, such as the Institute for Scrap Recycling, Inc. (ISRI). (Ex. F, Vol. 
III, dated September 18, 2019, pp. 837:5-8, 385:11-26.)   
Defendants contend Shapiro makes several admissions fatal to the reliability of 
his conclusions.  According to Defendants, Shapiro admits there are no federal or 
industry design or performance standards for shredding and sorting systems and that he 
did not cite to any federal standards or best practices in his report. (Dkt. No. 225-13, at 
30-31, D. Shapiro Dep., Vol. IV, 980:8-981:11, 588:9-21).  Defendants also allege that 
Shapiro agrees he did not perform testing of any kind in reaching his conclusions and 
simply “applied [his] background” to the facts to reach his conclusions. (Ex. I, pp. 33;23-
34:14, 39:16-22, 50:3-12.)   
There are no standards which inform unsafe levels of fluff in Zurik such as the 
threshold percentage or amount of fluff in Zurik that makes it combustible. (Id. at 375:1-
5 and 379:15-22. Ex. I,  p. 443:14.)  The Silipena Brothers testified that they knew fluff 
was combustible and that they did not keep track of the amount of fluff accumulating in 
the Zurik bin. (September 5, 2018 deposition (Volume I) of Joseph Silipena, Ex. C, pp. 
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47:24 to 48:14; 103:23-25; 104:1-7; September 17, 2018 deposition (Volume I) of 
Edward Silipena, Ex. E, pp. 55:23 to 56:8; 219:3 to 219:21.) Shapiro concludes that the 
Zurik bins presented an increased risk of fire because the shredding and sorting 
system’s Zurik output supposedly contained a higher-than-normal amount of “fluff,” a 
non-metal and non-reclaimable byproduct of the shredding process, because the 
tumbleback and downstream sorting system were overloaded. (Ex. G at 20, 38-43, 48-
64, 75-79; Ex. I, pp. 80:15-81:21, 174:9-20, 259:7-10.) Shapiro also admits that there was 
no standard requiring the inclusion of a nonferrous bypass and admitted that the lack of 
a bypass does not make a system defective. (Ex. I, pp. 53:12-54:15, 54:24-55:3, 66:5-19.) 
Considering the lack of standards identifying the fluff threshold for combustibility and 
lack of standards for a bypass, Defendants argue Shapiro’s conclusions are not reliable 
and unsupported by scientific data and methods.   
Plaintiffs argue that Shapiro is not a scientific expert and, therefore, his 
methodology cannot be judged by traditional scientific standards.  Despite the dearth of 
federal industry governance, Shapiro drew on his industry experience as he reviewed 
hundreds of documents, deposition transcripts, videos of the System, images, 
renderings, designs, and other voluminous materials as set forth in Appendix G of his 
Report. (Ex. B, Shapiro Dep., at 176:4-14.)  He also met with the Silipena Brothers on 
two occasions and describes his methodology “was to utilize all of the data available to 
me, including meetings I had with the principals, the video that was provided by Eriez, 
look at anything that was presented to me, and form my opinions based on that 
information.” (Id. at 39:18-40:2. 123).  Shapiro reviewed relevant literature14 and 
 
14 Shapiro identified standards and best practices that he relied upon in forming his opinions. (Ex . T, D. 
Shapiro Dep, Vol. III, 719:4-720:3); (Ex. C, D. Shapiro Dep., Vol. II, 586:11-16); (Ex. D, D. Shapiro Dep., 
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reviewed and evaluated The System’s design history15.  Shapiro’s lengthy report and 
rebuttal report contain over two hundred (200) citations and eleven (11) appendices 
which include his proposal for an alternative System design with diagrams.16 He also 
prepared tables of calculations in support of his opinions regarding the existence of a 
defect in the System, as well tables of process flow calculations demonstrating his 
proposed alternative designs.17 (Dkt. 231-10, Shapiro Rep., Ex. E. at 93 (Appendix B)).  
Thus, Mr. Shapiro’s fifth opinion proffering that the System was defectively 
designed because it failed to contain adequate warnings about the known risk of fire 
associated with Zurik is reliable. (Ex. J, Shapiro Dep. Tr. 285:11-20).   The Court finds 
Mr. Shapiro’s proffer and explanations are sufficient as they relate to Cooper’s 
responsibility for the operational speed of the tumble back.  “I’m taking a concept of the 
entire system from all of the vendors integrating together and coordinating to deliver a 
system that would produce at the expectations.” (Id. at Tr. 292:10- 13). 
“Industry practice may be used as a proxy for peer review...[and] may help negate 
criticism based on lack of testing of an alternative design.” Milanowicz, 148 F.Supp.2d 
 
Vol. IV, 1072:19- 1073:3, 1074:7-20). These include peer reviewed literature, relevant industry/trade 
publications, news articles, and scrap metal pricing data. (Dkt. No. 231-10, at ¶ 22; Ex. C, Shapiro Dep., at 
589:17-590:22. 124). 
 
15 This evidence included video and iterative layout drawings for the System. ( Dkt. No. 231-10, at ¶¶ 20, 
61, 113, 183, 206.) He also reviewed other systems over the course of his career. (Dkt. No. 231-10, at ¶ 8). 
 
16 Shapiro’s diagrams include incorporating the use of a bypass and he provided several examples of the 
use of a bypass in the industry by other consumers and manufacturers at the time the System was built.  
(Dkt. No. 231-10, at ¶ 109; Ex. C, Shapiro Dep. at 360:1-361:8; 598:5-601:15 Dkt. No. 231-10, at 91-92 
(Appendix A); Dkt. No. 231-10, at 98 (Appendix C); Ex. K –  Deposition Transcript of Daniel J. Shapiro 
9/17/2019 T372:2-6). 
 
17 Plaintiffs argue that Shapiro’s evidence of industry usage of his alternative layout designs to verify their 
commercial viability is a proxy for peer review as further indicia of reliability. (Dkt. No. 225-10, at 44-45 
(D. Shapiro Initial Report, ¶ 109)); Ex. C, D. Shapiro Dep., Vol. I, 360:1-361:8); Ex. C, D. Shapiro Dep., 
Vol. II, 598:5-601:15).   
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at 533. Daniel Shapiro, although not a scientist, possesses forty-three years of service in 
the industry as an owner/operator and as a consultant. “In cases not involving scientific 
testimony, courts must still serve the gatekeeping function described in Daubert ... but 
the factors identified in Daubert may or may not be pertinent in assessing reliability, 
depending on the nature of the issue, the expert's particular expertise, and the subject of 
his testimony.” United States v. Walker, 657 F.3d 160, 175 (3d Cir. 2011) (citations 
omitted). The Court has “considerable leeway in deciding” whether an expert's 
knowledge and experience support admissibility. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 
at 1176; Oddi v. Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000).   
Here “the relevant reliability concerns may focus upon personal knowledge or 
experience.” Betterbox Communications Ltd. v. BB Technologies, Inc., 300 F.3d 325, 
329 (3d Cir. 2002) (quoting Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167, 143 L.Ed.2d 
238) (internal quotations omitted).
 The Court must consider whether Shapiro’s opinions 
sufficiently “flow from the facts known to the expert and the methodology used.” Oddi, 
234 F.3d at 145 (citing Heller, 167 F.3d at 153). “If the witness is relying solely or 
primarily on experience, then the witness must explain how that experience leads to the 
conclusion reached, why that experience is a sufficient basis for the opinion, and how 
that experience is reliably applied to the facts.” Advisory Committee Notes, 2000 
Amendments, Fed. R. Evid. 702. Exercising the “considerable discretion” afforded to 
“determine the criteria for judging reliability under the particular circumstances[,]” the 
Court finds that Shapiro’s conclusions are reliable. Betterbox, 300 F.3d at 329; see also 
Durkin v. Wabash Nat., No. CIV.A. 10-2013, 2013 WL 1314744, at *12 (D.N.J. Mar. 28, 
2013). 
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Shapiro’s lengthy and operational membership and personal knowledge in the 
sorting and shredding industry combined with his review of the relevant industry 
materials, the product design and accident history of the System and similar systems, 
and the record in this case is a sufficient methodology and render his conclusions 
regarding the operation, operational design and safety issues related to the metal 
shredding and sorting issues in this case reliable and admissible. Milanowicz, 148 F. 
Supp. 2d at 533.  
Milanowicz was a design defect case in which the expert’s proposed alternative 
design was precluded for lack of reliability. In that case, the court's concern focused on 
the expert’s failure to test the performance of his proposed design with that of the 
original, his failure to use any diagrams or illustrations to support his opinion, and the 
lack of historical context for his contentions. Milanowicz, 148 F.Supp.2d at 539. 
Specifically, the court stated that the expert “provided no evidence of the availability or 
extent of use of his proposed alternative design, let alone identify a single model or 
manufacturer.” Id. at 540.  The court identified nine indicia of reliability. Here, Shapiro 
clears that hurdle and satisfies at least seven applicable elements of reliability. See, e.g., 
Worrell v. Elliott & Frantz, No. CIV.A. 09-4443, 2013 WL 1628948, at *5 (D.N.J. Apr. 
16, 2013).  “The evidentiary requirement of reliability is lower than the merits standard 
of correctness.” Paoli II, 35 F.3d at 744; see also In re TMI Litig., 193 F.3d 613, 665 (3d 
Cir. 1999) (stating that “the standard for determining reliability is not that high, even 
given the evidentiary gauntlet facing the proponent of expert testimony under Rule 702” 
(internal quotation marks and citation omitted)); Kannankeril, 128 F.3d at 806 
(“Admissibility decisions focus on the expert's methods and reasoning; credibility 
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decisions arise after admissibility has been determined.”). Because Shapiro’s 
conclusions derive from evidence and experience and are not based on subjective belief 
or unsupported speculation, they are admissible. 
Finally, Shapiro’s conclusions derive from his specialized knowledge of this 
unique industry and therefore “fit” and will assist the jury and do not constitute a net 
opinion. A net opinion is not a specific factor under Daubert, nor can it be found as a 
specific rule in the Federal Rules of Evidence. See Holman Enter. v. Fidelity & Guar. 
Ins. Co., 563 F.Supp.2d 467, 472 n. 12 (D.N.J. 2008). Essentially, it's a longstanding rule 
that dictates exclusion of expert testimony that contains “bare conclusions, unsupported 
by factual evidence.” Id. (citing Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1156 
(N.J. 1981)). “Such an opinion ... [is] of no assistance to the trier of fact” and may be 
insufficient to establish causation. Tannock v. New Jersey Bell, 223 N.J.Super. 1, 537 
A.2d 1307, 1309, (N.J.Super.Ct.App.Div. 1988). Expert opinion testimony aids the trier-
of-fact in making factual determinations and must be predicated upon evidence, not 
speculation. See State v. Kelly, 97 N.J. 178, 478 A.2d 364, 379 (N.J. 1984). The Court 
finds that Shapiro’s opinion is not a net opinion and his testimony will not be stricken 
and the motions challenging his testimony on this basis will be denied.  
C. Victor Popp, P.E. 
Defendant Cooper moves to preclude the opinions and testimony of Plaintiffs’ 
professional engineering standard of care expert, Victor Popp, P.E.
18  
 
18 Popp was initially retained as Plaintiffs’ rebuttal expert to challenge Defendants’ experts James Gallagher 
and Nicola Cinalli.  He was permitted to replace Plaintiffs’ primary standard of care expert, Robert Malanga, 
after Malanga became medically unavailable, and later died. ( Dkt. No. 117.) Popp has been subjected to 
cross examination and testified as to the unexpected and sudden circumstances of his substitution. During 
his deposition, Popp acknowledged he had one-weeks’ time to review the documents related to the standard 
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Defendant Cooper is a professional engineering consulting firm, licensed to 
practice civil engineering in the State of New Jersey.  Cooper was retained by Plaintiffs 
Joseph and Edward Silipena to provide installation schematics, including design, 
specification, manufacture, purchase, and installation of specialized equipment for the 
Silipenas’ scrap metal and automobile shredding and sorting machine and associated 
equipment. Cooper’s engagement was limited to the design of the equipment necessary 
to accomplish the installation of the machine and the associated controls, but not 
related to the function of the machine itself.   
Cooper gathered the relevant information from the manufacturers regarding the 
physical size and weights (static loads) of the equipment as well as the dynamic loads 
generated by the equipment to be transferred to the ground. Using these specifications, 
Cooper calculated the specifications for the geotechnical work required to design the 
foundations to which the equipment would be mounted to ensure they were safely 
anchored to the ground and would not collapse, move, or fall over. In addition, Cooper 
designed the electrical transformers, panels and wiring necessary to provide power to 
the equipment, among other tasks unrelated to this litigation. 
 Thus, while the machine served the commercial purpose of shredding scrap metal 
and automobiles and then sorting the combined shredded material into separate 
resalable ferrous and non-ferrous metals for recycling, Cooper’s responsibility was 
limited to design of installation support and operational control devices.  To this end, 
 
of care and  prepare his opinion. (RSF ¶ 75.) Popp also testified as to the objectiveness of his opinion and 
his methodology in support of rendering his own opinion. (RSF ¶ 76.) The Court granted Plaintiffs leave to 
substitute Popp as their principal standard of care expert, and Plaintiffs subsequently amended their expert 
disclosures. 
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Cooper argues that the Silipena Brothers provided no guidance on where or how long 
any material generated during the recycling process, whether it be ferrous, nonferrous, 
or fluff, could or should be stored.19  
Cooper moves to strike the report on several grounds including that the report is 
unreliable because it is simply predicated on the Opinion of Mr. Malaga, the opinion 
lacks a sufficient grounding in the facts of this case because Mr. Popp failed to read most 
of the depositions prior to rendering his opinion
20, opinion is infected with confirmation 
bias, the opinion is nothing more than an impermissible net opinion, and Mr. Popp fails 
to provide a proximate cause link between the alleged breach of the standard of care of a 
professional engineering firm and the alleged damages. The challenges go to reliability 
and fit. 
1. Reliability 
Cooper makes two reliability-based arguments to challenge the admissibility of 
Mr. Popp’s opinion and testimony  First, Cooper claims that Mr. Popp’s late entry into 
this matter prevented him from reviewing the entire record before delivering his 
opinion, a fact Mr. Popp did not dispute during his deposition. Mr. Popp agreed that he 
reviewed only one deposition but states that he considered the opinion of Mr. Malaga 
and a sampling of the record.  However, Mr. Popp issued a supplemental expert report 
after review of the new evidence in this matter. (Popp, Supp. Report, Dkt. No. 297, Ex. 
 
19 During his deposition, Joseph Silipena testified that he never asked Cooper how to operate  
the equipment. (Ex. H, Dep. of Joseph Silipena, 9/7/18, pp. 219:18-220:2). 
 
20 Cooper identified nine fact witness depositions relevant to Mr. Popp’s opinion: Joseph Silipena, Edward 
Silipena, Robert Kirk, Glen “Skip” Anthony, David Wagner, Michael Shatuck, Scott Tauke, Joseph 
Jindrich and Steve Merz.  A few of the depositions were two days long. D uring his deposition, Mr. Popp 
acknowledged that he read the transcript of only one deponent, Steve Merz.   
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AZ). In his supplemental report, Mr. Popp detailed his review of additional evidence and 
deposition testimony and concluded that the additional evidence served to “reinforce” 
his original opinion. (Id). The Court finds that Mr. Popp’s initial opinion is based on 
sufficient facts and a reliable methodology.21  Moreover, given that the report has been 
supplemented and further supported, the challenge also fails.  Therefore, Cooper’s 
challenge regarding the sufficiency of evidence reviewed by Mr. Popp has been rebutted 
and does not undermine the reliability of Mr. Popp’s opinions. 
Cooper’s second challenge as to reliability centers on Mr. Popp’s adoption of the 
findings in Mr. Malanga’s report which may support an inference of confirmation bias.   
Cooper claims Mr. Popp is impermissibly serving as a conduit for Mr. Malanga’s 
opinion. See Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 
(7th Cir. 2002) (recognizing support for the proposition that an expert cannot merely 
become a mouthpiece for the opinions of another expert).  The Court finds that Cooper’s 
arguments in this regard go to the credibility of Mr. Popp, not the admissibility of his 
opinions, which have sufficient support in the record.   
Mr. Popp’s  supplemental report states as follows: 
While I suspect Mr. Merz can justify his position to himself based on his 
assumption that Cooper’s Scope of Work did not include “safety,” the Scope does 
not exclude his professional responsibility for safety, as required by Title 13, 
Chapter 40. Professional engineers have to demonstrate that they considered 
 
21 Mr. Popp testified at his deposition that his expert opinions were formed using Project “Post  Mortem” 
(“PPM”), and Failure Modes and Effects Analysis (“FMEA”) reviews. (Dkt. No. 226-18, at 52, Popp Dep., 
pp. 201:18-202:3; 202:16-20). Mr. Popp explained the application of failure mode methods as a ranking 
and weighted factor analysis, which is then used to quantify risks of an engineering project. ( Dkt. No. 226-
18, at 23 -24, Popp Dep., pp. 88:22 -89:9). Cooper does not challenge this methodology.  An engineering 
expert’s technical opinions are sufficiently reliable when grounded the expert's identification and discussion 
of design and performance standards, support in relevant literature, and use of scientific methods and 
standard forensic engineering principles set for by industry standards. See Milanowicz , 148 F. Supp. 2d at 
532-35. Its argument challenges the sufficiency of the foundational record evidence considered to conduct 
the analysis and therefore goes to the weight of the evidence, not admissibility . 
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safety as part of the execution of their duties, rather than say this was not 
necessary because my Scope of Work did not include it.  The Antinora deposition 
did nothing to [a] ffect my earlier opinion as reflected in  my previous report, 
regarding Cooper’s standard of care. 
 
(Popp, Supp. Report, Dkt. No. 297, Ex. AZ, Part E. ¶¶ 3, 4). 
 
Mr. Popp’s deposition testimony further solidified the use of PPM and FMEA as 
forensic engineer’s tools and that his opinion was formulated using these applications 
and is the products of his own analysis. (RSF ¶¶ 85, 87.) The Court finds that Mr. Popp’s 
opinions are sufficiently grounded in a reliable methodology and are not the product of 
confirmation bias. See AIG Prop. Cas. Co. v. A.O. Smith Corp., No. CV168930MASTJB, 
2018 WL 4146602, at *3 (D.N.J. Aug. 30, 2018).  In this regard, challenges to the weight 
of Mr. Popp’s opinions are fair game given the necessary, but truncated manner he 
reviewed the documents in this case to formulate his opinions.
22 However, given the 
scope of his opinion as it relates to the professional standard of care for an engineer, the 
opinions are sufficiently reliable.  
2. Fit 
The Court finds Mr. Popp’s opinions satisfy Daubert’s fit requirement, which 
primarily accesses relevance. Daubert, 509 U.S. at 592. Otherwise known as the 
“helpfulness” standard, “fit” requires that an expert's conclusion have a valid connection 
to the pertinent inquiry as a precondition to admissibility. Id. at 591-92. “[T]he expert's 
testimony must be relevant for the purposes of the case and must assist the trier of fact.” 
 
22 Mr. Popp testified that he was able to review the deposition testimony of  Cooper’s corporate designee 
and Steve Merz, as well as the expert reports of Mr. Malanga, Mr. Gallagher, and Mr. Cinalli. (RSF ¶ ¶ 91, 
92.) 
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Schneider, 320 F.3d at 404 (3d Cir. 2003) (citations omitted). The standard for fit is 
“not that high” but “is higher than bare relevance.” Paoli II, 35 F.3d at 745. 
Application of this standard does not challenge the correctness of an expert’s 
conclusion; therefore, the Court must only determine whether Mr. Popp’s opinions 
“flow[] from the facts and considerations and [are] ‘sufficiently tied to the facts of the 
case that it will aid the jury in resolving a factual dispute.’” Worrell, No. CIV.A. 09-4443, 
2013 WL 1628948, at *4.  
Cooper challenges Mr. Popp’s opinions as lacking relevance and on the ground 
that his unsupported conclusions are nothing more than an impermissible net opinion.  
As previously discussed, a “net opinion” is not a specific factor under Daubert, nor can it 
be found as a specific rule in the Federal Rules of Evidence. See Holman Enter., 563 
F.Supp.2d at 472 n. 12. Essentially, it's a longstanding rule that dictates exclusion of 
expert testimony that contains “bare conclusions, unsupported by factual evidence.” Id. 
(citing Buckelew, 87 N.J. 512, 435 A.2d at 1156). Expert opinion testimony must aid the 
trier-of-fact in making factual determinations and be predicated upon evidence, not 
speculation. See Kelly, 97 N.J. 178, 478 A.2d at 379. By contrast, a net opinion is “of no 
assistance to the trier of fact” and may be insufficient to establish causation. Tannock, 
223 N.J.Super. 1, 537 A.2d at 1309. Therefore, an expert opinion based upon 
speculation, possibilities or contingencies is inadmissible. See Buckelew, 435 A.2d at 
1150. 
Cooper makes a good case for discounting Mr. Popp’s opinions as appearing to 
lack foundational support. Because of the circumstances of his expedient transition from 
rebuttal to principal expert, Mr. Popp had to issue his opinions on short notice and, in 
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the first opinion, without the benefit of his own fulsome review of the record.  But as this 
Court has found, Mr. Popp’s opinions are sufficiently substantiated with relevant 
foundational evidence, are not the product of confirmation bias, and will assist the trier 
of fact regarding the application of the standard of care for engineers to the facts of this 
case.  Cooper’s challenge goes to the weight the jury will afford Mr. Popp’s testimony, 
not its admissibility.  Cooper’s motion to preclude Mr. Popp is denied. 
D. Christopher Brophy 
Defendants American Pulverizer Company and Hustler Conveyor Company [Dkt. 
No. 231] and Defendant Eriez Manufacturing Company [Dkt. No. 236] separately move 
to preclude Plaintiffs’ damages expert, Christopher Brophy. The Defendants’ motions 
will be granted in part and denied in part. 
As discussed, Plaintiffs seek recovery under the theory that they were injured and 
incurred damages because of two significant fires at their facility caused by certain 
defects in the System. To this end, Plaintiffs have identified Christopher Brophy 
(“Brophy”) as a liability/damages expert in this matter to quantify the impact of the 
alleged losses suffered by Plaintiffs because of the following: 
A. A fire that occurred at AIMI on April 22, 2012; 
B. A fire that occurred at AIMI on December 8, 2012; 
C. The impact to correct the design problems in the System; 
D. The resultant collapse of AIMI; 
E. The resultant collapse of AASR. 
 
Plaintiffs served Defendants with Brophy’s Curriculum Vitae (“CV”) and Expert 
Report, dated April 30, 2019. (See Defendants ACPO and Hustler Omnibus Statement of 
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Undisputed Material Facts ¶ 90, Exhibit O [Dkt. 231-1]). The Court derives the following 
relevant information from Brophy’s CV and Report. 
Brophy has over thirty-seven years of experience as a Certified Public Accountant 
(“CPA”) and over twenty-five years of experience preparing commercial damage 
assessments for companies in various industries. Brophy taught training classes, 
presented education seminars, and published articles concerning the calculation of 
economic damages, mostly for insurance claims. Brophy was a Division Manager for the 
recycling division of a waste management company in Brooklyn, in which capacity he 
was responsible for overseeing the financial operations of the company’s recycling 
division. Brophy is also a Certified Fraud Examiner.  
Brophy’s Report identifies damages for the following: 
1. Property and business interruption damages from the April 22, 2012 fire 
(“first fire”) in the amount of $4,036,214, comprised of $3,643,853 in 
property damage and $392,361 in business interruption damage;  
2. Property and business interruption damages from the December 8, 2012 
fire6 (“second fire”) in the amount of $7,219,697, comprised of $3,320,413 
in property damage and $3,899,284 in business interruption damage; 
3. Losses to fix design issues in the a mount of $5,355,731, comprised of 
$1,000,000 to re -design the system and $4,355,731 in business 
interruption damage;  
4. Collapse of AIMI in the amount of $21,060,430; and 5) Collapse of AASR 
in the amount of $9,127,665. 
Brophy Report ¶ 11. Brophy calculated that total damages for areas that were impacted 
by the Plaintiffs as described in the Complaint are $37,793,959. Id. 
Defendants argue that Brophy should be precluded from testifying at trial and his 
opinion be stricken because Plaintiffs are unable to meet their burden of demonstrating 
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the reliability of his methodology and that his methods “fit” the facts of the case.23 (Dkt. 
No. 321-2 at *7). 
1. Production Volume 
First, Defendants attack Brophy’s methodology as flawed for relying on improper 
assumptions concerning the facility’s projected processing volume. According to 
Defendants, Brophy’s damages calculation must be precluded as unreliable because it 
proceeds from an incorrect hypothetical volume of 8,400 tons per month. (Br. in Supp. 
at *11-12 [Dkt. No. 231-2]). Brophy projected 8,400 tons by multiplying 60 tons per 
hour by 7 hours per day, by 5 days per week by 4 weeks per month. Contrary to 
Defendants’ characterization that Brophy derived this figure from uneducated 
guesswork and speculation, Brophy’s report sets forth the factual foundation for both 
the tons per hour and the hours of operations. As Brophy explained, 
The Silipenas were provided pro jections provided by American Pulverizer. 
While the System was designed to process 80 tons per hour, American 
Pulverizer indicated that 60 tons per hour was more reasonable. The 
Silipenas indicated that they expected to operate an average of seven hours 
per day, five days per week, for an average of four weeks per month. 
 
(RSF ¶ 151.) Brophy’s report also refers to Glenn Skip Anthony’s deposition testimony 
that “we were looking at 45 to 55 ton an hour of ferrous out” and notes “[t]hat 
represents 60 to 73.3 total tons input.” (RSF ¶ 152.) Further, Brophy confirmed during 
his deposition that the hours of operation were based on his discussions with the 
Silipenas and the basis for the 60 TPH came from discussions with the Silipenas, 
 
23 Defendants do not dispute that Brophy is qualified under the standard of Rule 702 and 
Daubert. 
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“review of documents including Skip Anthony documents,” and “testimony by the 
defendants.” (RSF ¶ 153.)24  
Defendants contend that the 8,400 TPM figure is skewed because it does not 
track AIMI’s actual monthly processing volume, which was a function of four days of 
operation per week and not five days. But Defendants ignore that the System was 
allegedly defective and not operating properly. Brophy testified that he considered 
Plaintiffs’ actual production numbers but determined he could not base his calculations 
on those values because of the design problems in the System. (Ex. P, C. Brophy Dep., 
Vol. I, 105:13-107:1); (Dkt. No. 225-31, at 32 (C. Brophy Dep., Vol. I, 223:13-20)). 
Accordingly, Brophy calculated the production numbers based on the hours Plaintiffs 
expected to run the System and the volume it would have processed if there were no 
design problems. (RSF ¶ 158.); (Ex. P, C. Brophy Dep., Vol. I, 76:1-6). Though the factual 
narrative underpinning his conclusions is predicated on evidence that may be disputed, 
it suffices that Brophy has propounded a reasonable foundation in the record. See Krys 
v. Aaron, 112 F. Supp. 3d 181, 199 (D.N.J. 2015). Whether such evidence is adopted by 
the jury is not determined in this Daubert motion. To the extent Plaintiffs’ alleged 
damages are unreasonably high because they fail to reflect actual processing volume, 
 
24 Brophy also offered an alternative calculation of damages using a projected monthly 
volume of 11,200 based on a processing volume of 80 TPH, which has equally as much 
factual support in the record as the lower range end of the range at 60 TPH. Indeed, 
Brophy’s report references the statement by Defendants that “Skip Anthony indicated in 
his October 1, 2007 email to the Silipenas that a customer operating the same size 
shredder processed 61 tons per hour of shredded ferrous output.” (RSF ¶ 155.) Defendant 
Skip Anthony’s email provides a basis for projecting 80 TPH because the sixty -one tons 
per hour of shredded ferrous output referenced in the email equates to over 80 TPH of 
total scrap processing, since shredded ferrous represents 75% of total input. (RSF ¶ 156.) 
During his deposition, Brophy explained that the 80 TPH processing volume was also 
based on his discussions with the Silipenas. (RSF ¶ 156.)  Brophy’s damages estimate 
based on a processing volume of 80 TPH is $49,121,927. 
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Defendants may challenge the underlying factual basis for Brophy’s opinions on cross-
examination. See Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 
2002) (noting that “Rule 705, together with Rule 703, places the burden of exploring the 
facts and assumptions underlying the testimony of an expert witness on opposing 
counsel during cross-examination”). 
2. Design Issues 
Defendants also challenge Brophy’s methodology on the basis that his 
calculations as to “design issues” are flawed because they rely on the same assumptions 
about production volume discussed, supra. Brophy concludes that Plaintiffs suffered 
damages in the amount of $5,355,731 because of the need to fix design issues with the 
System. (See Ex. O at ¶ 11). This number includes $1,000,000 for the repair of the 
unnamed issues and $4,355,731 for “business interruption.” Id. at Schedule 4. 
Regarding Brophy’s $4,355,731 estimate for business interruption damages, 
Defendants maintain this figure is “completely speculative and useless” because it fails 
to track actual monthly processing volume. The Court rejects this argument for the same 
reasons set forth above. 
As for Brophy’s $1,000,000 estimate applicable to the repair of design issues, 
Defendants contend that Brophy offers no support for this number in his Report. 
Plaintiffs’ shredding expert stated that the cost to correct all “design problems” in the 
system was $150,000. (See Ex. H at 601:16-602:25). Brophy testified that he did not 
know of this when he rendered his opinions. (See Ex. Z at 95:12-15). Federal Rule of 
Evidence 702(b) requires that an expert’s opinion be based on “sufficient facts or data.” 
Fed. R. Evid. 702(b). A court may find an expert opinion unreliable under Rule 702 
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should it lack “good grounds[.]” Daubert, 509 U.S. at 590. Though experts commonly 
rely on information provided by parties who hire them, courts are not required to admit 
opinion evidence where the purported factual foundation on which an opinion is derived 
is contradicted and lacking some other indicia of reliability. Brophy does not purport to 
have drawn on his own expertise, judgment and training in concluding that the repair of 
design issues cost $1,000,000. Rather, Brophy relied solely on the representations of 
the Silipenas and acknowledged he was unaware of Plaintiffs’ shredding expert’s 
$150,000 estimate. Because Brophy’s estimate for the repair of design issues is directly 
contradicted by the conclusions of Plaintiffs’ shredding expert, and in the absence of 
some other adequate factual basis in the record or indicia of reliability, this aspect of 
Brophy’s opinion is inadmissible.  
3. Resultant Collapse of AIMI and AASR and Damages 
Defendants seek to exclude Brophy’s opinions insofar as they assume AIMI would 
have gone out of business solely due to the April fire or due to a combination of the April 
fire and the design defects, and that the April fire would have put AASR out of business. 
Importantly, however, Brophy was retained to quantify the impact of losses suffered by 
Plaintiffs assuming the factual occurrence of AIMI and AASR going out of business. 
What Defendants consider improper speculation is Brophy’s assumptions as to the 
substance of Plaintiffs’ theory of liability that may (or may not) be established at trial. 
Because Defendants’ alleged misconduct in designing, manufacturing, supplying and 
implementing the System is the only “cause” in this case from which the damages 
allegedly flow, it was appropriate for Brophy to assume that principles of liability will be 
established independently for purposes of rendering a damages opinion. See U.S. Accu-
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Measurements, LLC v. Ruby Tuesday, Inc., No. CIV. 2:10-5011 KM, 2013 WL 1792463, 
at *5 (D.N.J. Apr. 26, 2013) (“[e]xpert opinions on damages commonly assume liability, 
which must be established independently.”). As such, it was permissible for Brophy to 
assume the occurrence of AIMI and AASR going out of business because of Defendants’ 
alleged misconduct relating to the System, and it is not required that he be qualified to 
offer an opinion as causation, as he simply does not offer any such opinion.  
Defendants argue that Brophy offers no methodology or analysis in support of his 
opinions regarding “collapse” damages. Brophy’s report states that he calculated the 
impact of the collapse of AIMI and AASR by valuing the business on a discounted cash 
flow basis. (Dkt. No. 225-20, at 11 (C. Brophy Initial Report, ¶¶ 52-53)). To calculate 
AIMI and AASR’s net present value employing a discounted cash flow methodology, 
Brophy used the discount rate, growth rates by year, and the yearly income tax figures. 
See Dkt. No. 225-20, at 32-58; In re Oneida Ltd., 351 B.R. 79, 88 (Bankr. S.D.N.Y. 
2006) (“A DCF analysis attempts to arrive at value by projecting the future cash flows of 
an enterprise and then discounting back to a present value.”). “Courts have consistently 
recognized that a discounted cash flow analysis is a reliable way to determine the value 
of a business.” UPMC v. CBIZ, Inc., No. 3:16-CV-204, 2020 WL 2736691, at *18 (W.D. 
Pa. May 26, 2020); Matrix Grp., Ltd. v. Rawlings Sporting Goods Co., 477 F.3d 583, 
594 (8th Cir. 2007) (referring to the discounted cash flow method as “the preeminent 
valuation methodology in the financial community”); Lippe v. Bairnco Corp., 288 B.R. 
678, 689 (S.D.N.Y. 2003) (“Many authorities recognize that the most reliable method 
for determining the value of a business is the discounted cash flow . . . method”). 
Schedules 5 and 6 in Brophy’s report provide the calculations and the figures relevant to 
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the net present value calculations for AIMI and AASR, including projected profit, 
income tax, and projected profit after tax. Both schedules 5 and 6 contain citations to 
Appendices C and D of Brophy’s report. 
Based upon his review of the results of the discounted cash flow analysis as well 
as the fact that the Silipenas had invested approximately $18,000,000, Brophy 
concluded that $21,060,430 million represented a reasonable valuation for AIMI and 
$9,127,665 represented a reasonable valuation for AASR in collapse damages. (RSF ¶¶ 
170, 175). Considering Brophy’s 35 years of accounting experience and his use of a 
commonly accepted valuation approach applying a selection of identified inputs deemed 
most reasonable in his professional judgment, Brophy’s methodology is sufficient for 
purposes of satisfying the reliability threshold of Rule 702. See Reis v. Barley, Snyder, 
Senft & Cohen LLC, No. CIV.A. 05-CV-01651, 2008 WL 2653670, at *9 (E.D. Pa. July 3, 
2008) (forensic accountant’s 35 years of experience expressly considered by Court as 
part of decision to admit testimony).  
Defendants attack Brophy’s loss calculations as too speculative to permit because 
his projections are “based on his subjective belief on growth rates.” (Br. in Supp. at *17 
[Dkt. No. 232-2]). Brophy estimated a growth rate of 6% for AIMI and 3% for AASR. 
Defendants claim that Brophy’s methodology is flawed in this regard because his 
estimated growth rates lack foundation where he failed to compare them with any 
standards or other published data from the automobile shredding or metal recycling 
industry. (Br. in Supp. at *17. [Dkt. No. 232-2]). However, as Brophy testified, it was his 
understanding that no standard projected growth rate was available for the scrap metal 
industry and he was unable to identify any helpful information on the subject in his 
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research. (Brophy Dep. Vol I, at 207:3-208:10; Brophy Dep. Vol II, at 417:22-418:8; 
426:12-16). 
The problem with ascertaining a growth rate is that it is an inherently subjective 
and speculative enterprise. Brophy was candid when he acknowledged the subjective 
nature of such projections in the absence of tangible industry data, remarking that his 
estimate for AIMI of 6% represented a “reasonable conservative growth rate” in his 
view. (Brophy Dep. Tr. 317:2-3; Brophy Dep. Tr. Vol. II 417:4-11). As Brophy explained, 
he considered AIMI’s performance in 2011 based on the P&L statement and projected 
“reasonable growth thereafter.” (Brophy Dep. Tr. 204:3-5). Brophy stated that he used a 
lower growth rate of three percent for AASR because it represented a reasonably 
conservative growth rate for a more stable business like AASR. (RSF ¶ 165.). The 
estimated rates employed by Brophy therefore reflect his judgment –  based on his 
qualifications and professional experience, which have not been challenged –  
forecasting the possibility that AIMI and AASR may have been capable of growing at 
reasonable rates. Defendants may address perceived errors in Brophy’s projected 
growth rates on cross-examination. But Defendants’ argument does not present the type 
of methodological challenge warranting exclusion of Brophy’s opinion regarding loss 
calculations. Cf. Jerome v. Watersports Adventure Rentals & Equip., Inc., No. CV 
2009-092, 2013 WL 3663059, at *13 (D.V.I. July 11, 2013) (“While the parties may still 
disagree over the precise discount rate which should be utilized, such disagreement does 
not rise to the level of a legitimate Rule 702 challenge to qualification, reliability, or fit 
so as to warrant exclusion of the testimony.”); Swierczynski v. Arnold Foods Co., 265 F. 
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Supp. 2d 802, 809-10 (E.D. Mich. 2003) (“the appropriate discount rate . . . is a matter 
that goes to weight, rather than admissibility.”). 
4. Balance of Defendants’ Challenges 
Defendants’ raise several additional arguments challenging Brophy’s damages 
calculations, none of which cast doubt on the reliability of his methodology. Defendants’ 
argument that Brophy failed to apportion damages as between the April fire, December 
fire, and design problems is unavailing where Plaintiffs are only under an obligation to 
prove damages to a “reasonable degree[]” and “the apportioning of that figure is a jury 
function.” Robinson v. Freightliner LLC, No. 08-CV-761, 2010 WL 887372, at *3 (M.D. 
Pa. Mar. 10, 2010) (quoting Berg Chilling Sys. Inc. v. Hull Corp., 369 F.3d 745 (3d Cir. 
2004) (internal quotations omitted). Similarly, Brophy’s failure to offset his damages by 
insurance proceeds and adjust for fees does not bear on the reliability of his calculations. 
See Marathon Petroleum Co. LP v. Midwest Marine, Inc., 906 F. Supp. 2d 673, 695 
(E.D. Mich. 2012), on reconsideration in part, No. 09-13804, 2012 WL 6632474 (E.D. 
Mich. Dec. 17, 2012) (“not including a setoff for insurance recoveries does not render 
[the expert’s] opinions on damages unreliable or inadmissible”). With respect to 
Defendants’ position that Brophy’s conclusions regarding AIMI are precluded by the 
New Business Rule, the Court recognizes that if such damages are fundamentally at 
odds with damages allowable under New Jersey law, then this aspect of Brophy’s 
opinion may be devoid of probative information and thus unhelpful to the jury under 
the “fit” prong of Daubert. However, this issue implicates a substantive question of law 
to be resolved on a separately filed motion for summary judgment, or alternatively by 
stipulation, before a determination about the admissibility of Brophy’s opinions on this 
damages category can be made. 
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IV. Conclusion 
For the reasons set forth above, Defendants’ Motions challenging the 
admissibility of certain experts is denied as to Patrick McGinley, Daniel Shapiro, and 
Victor Popp.   The Motions to preclude Christopher Brophy are denied in part and 
granted in part consistent with the forgoing. To the extent that the Defendants seek 
summary judgment predicated upon the lack of requisite expert opinions, those motions 
are denied.  Plaintiffs’ Motion to Strike at docket entry 271 is denied as it relates to the 
motions challenging the experts. 
An appropriate Order shall issue. 
Dated: June 28, 2024 
      s/ Joseph H. Rodriguez   
      Hon. Joseph H. Rodriguez, 
      United States District Judge 
 
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