Campbell-Perfilio v. PennDot

67 Pa. D. & C.4th 31, 2004 Pa. Dist. & Cnty. Dec. LEXIS 148
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJune 10, 2004
Docketno. 96 CV 3784
StatusPublished

This text of 67 Pa. D. & C.4th 31 (Campbell-Perfilio v. PennDot) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell-Perfilio v. PennDot, 67 Pa. D. & C.4th 31, 2004 Pa. Dist. & Cnty. Dec. LEXIS 148 (Pa. Super. Ct. 2004).

Opinion

NEALON, J.,

Two defendants in this products liability litigation have filed motions to preclude the testimony of the plaintiff’s experts on the grounds that it is based upon novel scientific evidence which is not generally accepted by the professional engineering community. The materials submitted for review under Pa.R.C.R 207.1(a) indicate that the relevant scientific community generally recognizes as acceptable the testing and methodology used by the plaintiff’s experts to formulate their opinions. Thus, the defense motions to bar the testimony of the plaintiff’s experts will be denied.

I. FACTUAL BACKGROUND

This wrongful death action arises out of a fatal motorcycle accident which occurred on August 6,1994, when the 20-year-old decedent, Christopher Perfilio, was operating a 1992 “Super Sport FZR 600” motorcycle on State Road 2010 (Dalton Road) in Overfield Township, Wyoming County. Perfilio’s motorcycle was manufactured by Yamaha Motor Corp. USA and equipped with an exhaust system that was designed and distributed by Vance & Hines Racing. The Vance and Hines exhaust system was promoted by Yamaha and installed on the Perfilio motorcycle by Lo-Jan Travel Center Inc. which was also the retail seller of the motorcycle. (Dkt. entry nos. 164 and 174, ¶¶1-3.)

Perfilio alleges that defects in the motorcycle’s exhaust system caused the engine to lose power and create in[34]*34creased drag on the rear wheel, thereby resulting in premature locking of the rear wheel and eventual loss of control at the time of the accident. In addition to products liability claims which have been asserted against Yamaha, Lo-Jan and Vance & Hines, Perfilio has advanced a claim against the Pennsylvania Department of Transportation for negligent design and maintenance of Dalton Road. (Id., no. 47.) Perfilio originally sued Lo-Jan’s principal, Ralph L. Parke, as well, but by order dated March 9, 2001, Judge Trish Corbett entered summary judgment in favor of Parke. (Id., no. 136.) Perfilio subsequently settled all claims against Vance & Hines pursuant to a joint tort-feasor release. (Id., nos. 113-14.)

Perfilio’s strict liability and negligence claims against Yamaha and Lo-Jan are predicated upon four expert reports which have been authored jointly by Charles Edwin Neu P.E., and Bayard T. McWilliams P.E., of Forensic Sciences Inc.1 According to their curriculum vitae which are attached to Perfilio’s submissions, Neu and McWilliams have bachelors degrees and masters degrees in metallurgical, mechanical and aeronautical engineering with technical and professional experience in vehicle and motorcycle accident reconstruction and the function of those vehicles’ component parts. (Id., exhibit F.) Perfilio’s experts have opined that, as a result of an exhaust defect, the motorcycle engine hesitated and caused the rear wheel [35]*35to lock during braking and ultimately led to Perfilio’s loss of control at the time of his fatal accident. (Id., exhibits A-C, E.)

In their “preliminary report” dated February 20,1998, Neu and McWilliams itemize the reports, depositions, documents and photographs that they reviewed and confirm that Neu personally examined the subject motorcycle. (Id., exhibit A, p. 2.) Based upon their review of those materials and inspection of the motorcycle, they conclude that the Vance & Hines exhaust system which was installed by Lo-Jan caused the motorcycle to malfunction and “behave unpredictably during braking.” The initial expert report references the deposition of the decedent’s brother who testified that “[t]he engine stalled when started cold and ‘stuttered and almost stalled’ when operated in the speed range of 5,000 to 7,000 RPM.” The decedent reportedly returned the motorcycle to Lo-Jan on several occasions “in order to have the improper engine operation corrected,” but to no avail. Neu and McWilliams note that the motorcycle’s “sparkplugs had to be replaced because they were completely black” and state that “[t]his is a sign of a mixture problem.” They opine in their first report that as a result of this engine failure, the motorcycle’s rear wheel “can slow more quickly than expected or lock up prematurely” and “can cause the operator of the motorcycle to lose control.” (Id., p. 3.) Perfilio’s experts further conclude that “the improper operation of the engine was a substantial contributing factor in Christopher Perfilio’s loss of control of the motorcycle as he approached the bend in the road” and that “to a reasonable degree of engineering certainty the improper operation of the motorcycle en[36]*36gine after the installation of the Vance & Hines exhaust system was a substantial contributing factor in causing Christopher Perfilio’s accident and fatal injuries.” (Id., pp. 3-4.)

Two months later, Neu and McWilliams generated a second report discussing the conduct of Yamaha and Vance & Hines. Observing that “Lo-Jan failed to properly calibrate the fuel and air mixture required for the proper functioning of the Yamaha motorcycle,” they state “that Yamaha took no steps to determine whether Lo-Jan was qualified or capable of properly installing the Vance & Hines exhaust system with the Carburetor Jet Kit.” (Id., exhibit B, p. 1.) The two opine that Yamaha should not have provided a Vance & Hines exhaust system and jet kit option with the motorcycle “when it knew or should have known that Lo-Jan was unqualified or incapable of properly installing and calibrating the exhaust system.” (Id.) Neu and McWilliams remark that following the installation of the Vance & Hines exhaust system, “riders of the motorcycle experienced a serious lack of power and ‘bogging’ of the engine” and “[t]he engine also experienced unusual sparkplug fouling for such low mileage.” The experts reiterate that “the loss of power or stalling of the engine of a motorcycle such as occurred in this case can cause unexpected lock-up of the rear wheel during braking because of the increased drag on the wheel from the engine.” In support of this conclusion, they note that during the post-accident examination of the motorcycle, “the exhaust system revealed unusual corrosion and damage not associated with the accident.” (Id., p. 2.)

[37]*37Following their review of three additional depositions, Neu and McWilliams prepared a third report on December 18, 1998. In this supplemental report, they reason:

“If satisfactory performance of the engine required the rider to take specific actions and precautions in the use of the choke and to always operate the motorcycle at a high speed, then it was incumbent upon Yamaha to provide instructions and precautions to the owners of the motorcycles they manufactured. There is no indication that Yamaha did so. Also, a motorcycle that requires constant high speed operation is not practical for use on public roads and should not be sold as such.” (Id., pp. 1-2.)

Lo-Jan and Yamaha have filed motions pursuant to Pa.R.C.P. 207.1 seeking to exclude the testimony of Neu and McWilliams on the grounds that they allegedly rely upon novel scientific evidence and principles which are not generally accepted by the relevant scientific community. Lo-Jan’s motion contends that “no scientific basis exists for the opinion of Neu and McWilliams” that an exhaust defect precipitated engine hesitation which caused the rear wheel to lock during braking. (Id., no.

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Cite This Page — Counsel Stack

Bluebook (online)
67 Pa. D. & C.4th 31, 2004 Pa. Dist. & Cnty. Dec. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-perfilio-v-penndot-pactcompllackaw-2004.