govinfo:USCOURTS-njd-1_17-cv-08567-1

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\UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
THE BOARDS OF TRUSTEES OF THE 
INTERNATIONAL UNION OF 
OPERATING ENGINEERS LOCAL 825 
WELFARE FUND, et al., 
 
 Plaintiffs, 
 
v. 
 
DELAWARE VALLEY CRANE RENTAL, 
INC. and J.L. DOBBS, INC., 
 
 Defendants. 
 
 
 
No. 1:17-cv-08567-NLH-KMW 
 
 
 
 
OPINION AND ORDER 
 
 
 
 
 
APPEARANCES: 
VINCENT M. GIBLIN 
DECOTIIS, FITZPATRICK, COLE & GIBLIN, LLP 
61 SOUTH PARAMUS ROAD 
SUITE 250 
PARAMUS, NJ 07652 
 
VIPIN P. VARGHESE 
DECOTIIS, FITZPATRICK, COLE & GIBLIN LLP 
500 FRANK W. BURR BLVD. 
TEANECK, NJ 07666 
 
ALEXANDER HEMSLEY, III 
DECOTIIS, FITZPATRICK, COLE & GIBLIN, LLP 
61 SOUTH PARAMUS ROAD 
SUITE 250 
PARAMUS, NJ 07652 
 
Attorneys for Plaintiffs 
 
ERIC B. MEYER 
DILWORTH PAXSON LLP 
1500 Market Street 
Suite 3500E 
PHILADELPHIA, PA 19102 
 
Attorney for Defendants PageID:
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HILLMAN, District Judge 
Upon consideration of Plaintiffs’ Motion in Limine to 
Exclude the Report and Testimony of Sarah K. Ivy, Esquire (ECF 
134), Defendants’ Motion in Limine to Exclude the Expert Report 
and Testimony of Plaintiffs’ Expert Terrence Mooney (ECF 135), 
the responses and replies thereto, and oral argument held on the 
record on June 12, 2023, and 
WHEREAS Federal Rule of Evidence 702 provides: 
A witness who is qualified as an expert by 
knowledge, skill, experience, training, or 
education may testify in the form of an 
opinion or otherwise if: 
(a) the expert’s scientific, technical, or 
other specialized knowledge will help the 
trier of fact to understand the evidence or 
to determine a fact in issue; 
(b) the testimony is based on sufficient 
facts or data; 
(c) the testimony is the product of reliable 
principles and methods; and 
(d) the expert has reliably applied the 
principles and methods to the facts of the 
case. 
and; 
WHEREAS the Third Circuit has described the requirements of 
Federal Rule of Evidence 702 as a “trilogy of restrictions on 
expert testimony: qualification, reliability and fit.” Calhoun 
v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003) (quoting 
Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, PageID:
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404-05 (3d Cir. 2003)(“[T]he district court acts as a 
gatekeeper, preventing opinion testimony that does not meet the 
requirements of qualification, reliability and fit from reaching 
the jury.”); and 
WHEREAS a witness “must be qualified to testify as an 
expert.” Calhoun, 350 F.3d at 321. This “requires ‘that the 
witness possess specialized expertise.’” Id. (quoting 
Schneider, 320 F.3d at 405); and 
WHEREAS the Third Circuit “interpret[s] this requirement 
liberally,” and an expert can be qualified through “a broad 
range of knowledge, skills, and training.” Id. (quoting In re 
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)); 
and 
WHEREAS this “liberal policy of admissibility extends to 
the substantive as well as 
the formal qualification of experts.” 
In re Paoli, 35 F.3d at 741 (noting the Third Circuit has 
“eschewed imposing overly rigorous requirements of expertise and 
ha[s] been satisfied with more generalized qualifications.”); 
and 
WHEREAS “it is an abuse of discretion to exclude testimony 
simply because the trial court does not deem the proposed expert 
to be the best qualified or because the expert does not have the 
specialization that the court considers most appropriate.” 
 
Lauria v. AMTRAK, 145 F.3d 593, 598-99 (3d Cir. 1998) (quoting PageID:
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Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 
1996)). Indeed, experts can be qualified “on the basis of 
practical experience alone, and a formal degree, title, or 
educational specialty is not required.” Id. “[I]nsistence on a 
certain kind of degree or background is inconsistent” with Third 
Circuit jurisprudence. In re Paoli, 916 F.2d at 855; and 
WHEREAS an expert witness’s “testimony must be reliable.” 
Calhoun, 350 F.3d at 321. “To establish reliability, the 
testimony ‘must be based on the methods and procedures of 
science rather than on subjective belief or unsupported 
speculation; the expert must have good grounds for his . . . 
belief.’” Furlan v. Schindler Elevator Corp., 516 F. App’x 201, 
205 (3d Cir. 2013) (quoting Schneider, 320 F.3d at 404); and 
WHEREAS “in Daubert v. Merrell Dow Pharmaceuticals, Inc., 
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the 
Supreme Court charged trial judges with the responsibility of 
acting as ‘gatekeepers’ to exclude unreliable expert testimony.” 
Calhoun, 350 F.3d at 320-21 (quoting Daubert, 509 U.S. at 597); 
and 
WHEREAS “expert testimony does not have to obtain general 
acceptance or be subject to peer review to be admitted under 
Rule 702. Indeed, in Daubert, the Supreme Court specifically 
held that Rule 702 overruled the requirement that an opinion 
must gain general acceptance in order to qualify as admissible PageID:
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expert testimony; instead general acceptance and peer review are 
only two of the factors that a district court should consider 
when acting as gatekeeper.” Schneider ex rel. Est. of Schneider 
v. Fried, 320 F.3d 396, 406 (3d Cir. 2003); and 
Whereas “[w]here there are other factors that demonstrate 
the reliability of the expert’s methodology, an expert opinion 
should not be excluded simply because there is no literature on 
point.” Id.; and 
WHEREAS experts may reason and utilize methods by analogy. 
See In re Ephedra Products Liability Litigation, 393 F.Supp.2d 
181, 189 (S.D.N.Y.2005) (“The analogies, inferences and 
extrapolations connecting the science to the witness's 
conclusions must be of a kind that a reasonable scientist or 
physician would make in a decision of importance arising in the 
exercise of his profession outside the context of litigation.”); 
see also In re Human Tissue Products Liability Litigation, 582 
F.Supp.2d 644, 657 (D.N.J.2008); and 
WHEREAS Federal Rule of Evidence 703 provides: 
An expert may base an opinion on facts or 
data in the case that the expert has been 
aware of or personally observed. If experts 
in the particular field would reasonably 
rely on those kinds of facts or data in 
forming an opinion on the subject, they need 
not be admissible for the opinion to be 
admitted. But if the facts or data would 
otherwise be inadmissible, the proponent of 
the opinion may disclose them to the jury 
only if their probative value in helping the PageID:
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jury evaluate the opinion substantially 
outweighs their prejudicial effect. 
“[E]xperts in various fields may rely properly on a wide variety 
of sources and may employ a similarly wide choice of 
methodologies in developing an expert opinion.” Cooper v. Carl 
A. Nelson & Co., 211 F.3d 1008, 1020 (7th Cir. 2000); and 
 WHEREAS, “if the challenged procedure is more accurately 
described as an application of an accepted methodology, it is 
not the proper subject of a Rule 702–based exclusion, but is 
rather the subject of cross-examination of the expert and 
resolution by the jury.” In re Paoli R.R. Yard PCB Litig., 916 
F.2d 829, 858 (3d Cir. 1990); See also Kasilag v. Hartford Inv. 
Fin. Servs., LLC, No. 11-1083, 2017 WL 773880, at *15 n.33 
(D.N.J. Feb. 28, 2017), aff’d, No. 17-1653, 2018 WL 3913102 (3d 
Cir. Aug. 15, 2018) (finding that objection to expert’s 
methodology “goes more to weight” rather than admissibility); 
and 
WHEREAS “there may be some circumstances where one’s 
training and experience will provide an adequa
te foundation to 
admit an opinion and furnish the necessary reliability to allow 
a jury to consider it . . . .” Oddi v. Ford Motor Co., 234 F.3d 
136, 158 (3d Cir. 2000). “Cases where courts have allowed 
testimony based on the experience of the expert often involve 
testimony as to custom and practice that has been acquired via PageID:
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such experience.” W. Am. Ins. Co. v. Jersey Cent. Power & Light 
Co., No. 03-6161, 2008 WL 5244232, at *8 (D.N.J. Dec. 15, 2008); 
and 
WHEREAS “as for fit, ‘the expert’s testimony must be 
relevant for the purposes of the case and must assist the trier 
of fact.’”
 Furlan, 516 F. App’x at 205 (quoting Schneider, 320 
F.3d at 404). This standard is not intended to be a high one, 
nor is it to be applied in a manner that requires the plaintiffs 
“to prove their case twice – they do not have to demonstrate to 
the judge by a preponderance of the evidence that the 
assessments of their experts are correct, they only have to 
demonstrate by a preponderance of evidence that their opinions 
are reliable.” Oddi, 234 F.3d at 145 (quoting In re Paoli, 35 
F.3d at 744); and 
WHEREAS arguments for excluding testimony carry 
substantially less weight when the Court acts as fact
-finder. 
“[W]here the Court itself acts as the ultimate trier of fact at 
a bench trial, the Court’s role as a gatekeeper pursuant to 
Daubert is arguably less essential.” Magistrini v. One Hour 
Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 596 n.10 (D.N.J. 
Jan. 4, 2002); accord Warner Chilcott Labs. Ir., Ltd. v. Impax 
Labs., Inc., Nos. 08-6304, 09-2073, 09-1233, 2012 WL 1551709, at 
*23 (D.N.J. Apr. 30, 2012) (“[T]he gatekeeping function of the 
court is relaxed in the context of a bench trial because a court PageID:
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is better equipped than a jury to weigh the probative value of 
expert evidence.”); Alco Indus. v. Wachovia Corp., 527 F. Supp. 
2d 399, 405 (E.D. Pa. 2007) (“In the context of preparing for a 
bench trial, it is not necessary to apply the Daubert standard 
with full force in advance of trial. Rather, the court has the 
flexibility to allow testimony provisionally and revise its view 
once the testimony is taken.” (citations omitted)); Gannon v. 
United States, 571 F. Supp. 2d 615, 616 (E.D. Pa. 2007) (“In a 
bench trial, th[e] Court’s ‘role as gatekeeper pursuant to 
Daubert is arguably less essential’ because a judge rather than 
a jury is the fact finder.” (quoting Clark v. Richman, 339 F. 
Supp. 2d 631, 648 (M.D. Pa. 2004))); and 
WHEREAS the Court finds that both experts are qualified as 
an expert in the field of accounting; and 
FURTHER that the same training and experience related to 
qualifications also make the proffered opinions sufficiently 
reliable to be considered by the Court; and 
FURTHER that the proffered expert’s testimony is relevant 
for the purposes of the case and will assist the Court as trier 
of fact; and 
WHEREAS the Court is mindful and the Parties are reminded 
that “[a]lthough Federal Rule of Evidence 704 permits an expert 
witness to give testimony that ‘embraces an ultimate issue to be 
decided by the trier of fact,’ an expert witness is prohibited PageID:
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from rendering a legal opinion.” Berckeley Inv. Grp., Ltd. v. 
Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) (“the line between 
admissible and inadmissible expert testimony as to the customs 
and practices of a particular industry often becomes blurred 
when the testimony concerns a party’s compliance with customs 
and practices that implicate legal duties.”); and 
THEREFORE, 
IT IS on this 13th day of June, 2023 
ORDERED that Plaintiffs’ Motion in Limine to Exclude the 
Report and Testimony of Sarah K. Ivy, Esquire (ECF 134) and 
Defendants’ Motion in Limine to Exclude the Expert Report and 
Testimony of Plaintiffs’ Expert Terrence R. Mooney (ECF 135) by, 
and the same hereby are, DENIED, but with the following 
limitations on these experts’ testimony: 
1. The Court will bar any testimony that crosses the line 
into legal advocacy, including, for example, testimony as to 
results of legal research or interpretation of caselaw; and 
2. The experts may not opine on legal issues that are for 
the Court to decide. 
 
At Camden, New Jersey s/ Noel L. Hillman 
 NOEL L. HILLMAN, U.S.D.J. PageID:
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