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Poolworks, Inc. v. Aquafin, Inc.

Area of Law:

Torts/product Liability. The case arose out of Plaintiff's use of Defendant's product "Aquafin-2K/M" (2K/M) designed to prevent pools from leaking through their concrete bottoms and sides. Plaintiff alleged that the 2K/M product caused delamination of pools' plaster coating and ruining the pools' interiors.

Grounds:

Defendant moved to exclude the testimony of Skip Phillips, Plaintiff's expert on causation, under Daubert as unreliable and because it would not assist the trier of fact.

Outcome:

Denied.

Analysis:

Mr. Phillips concluded that that the delamination of the pools had been caused by the 2K/M product. He relied on his examination of the pools and one sample he took.

The court first noted that Defendant did not challenge Phillips’s qualifications as an expert, which were extensive and included pool building experience dating back to 1979, ownership of a pool service and construction company, employment in over 300 cases as a swimming pool expert, being a co-founder of the Genesis 3 Educational System which provides higher education in the pool industry, and development of educational seminars.

The court considered Phillips’s methodology and found it reliable. The court stated that Phillips relied on his extensive experience. The court rejected Defendant’s argument and Defendant’s own expert’s testimony that Phillips should have used the ASTM C856 “hardened concrete” standard, finding no “compelling evidence that the ASTM C856 ‘hardened concrete’ standard is not only applicable but necessary for the testing of the delamination at issue here.” Availability of other testing thus went to the weight, not admissibility of Phillips’s opinion.

In addition, the court declined to hold that Phillips’s testimony was unreliable as based on his ipse dixit. The court stressed that an expert may draw a conclusion from a set of observations based on extensive and specialized experience, and he did just that when he tested delamination in the pools. Finally, the court rejected Defendant’s challenge based on Phillips’s alleged failure to exclude other potential causes of delamination, as these issue could be brought up on cross-examination.

The court also held that Phillips’s testimony that application of 2K/M caused the delamination was relevant for the purposes of this case, would assist trier of fact, and therefore satisfied the “fit” requirement of Fed. R. Evid. 702 and Daubert.