Submitted: July 19, 2018
Defendant Kenneth Lilly Fastener's Motion in Limine to
Strike Plaintiff's Expert Report.
T. Lees, III, Esquire, Logan & Petrone, LLC, 100 West
Commons Blvd., Suite 435, New Castle, Delaware, 19720.
Attorney for Plaintiff.
Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill
Road, Suite 301, Wilmington, Delaware, 19806. Attorney for
L. SCOTT, JR. JUDGE
Tree Services, Inc. ("Plaintiff") claims breach of
contract, breach of express warranty, and breach of implied
warranty of merchantability against Kenneth Lilly Fasteners,
Inc. ("Defendant"). Plaintiff and Defendant entered
into an agreement where the Defendant was to supply 1, 000
locknuts and bolts to Plaintiff for use in Plaintiff's
Peterson 6710B Grinder (hereinafter "grinder").
uses this stump grinder during land clearing operations.
Plaintiff contends that due to the high temperatures
generated by the grinder and severe vibrations, a lock nut
and bolt system must be used as opposed to a normal nut and
bolt system. Plaintiff purchased the nuts in batches of 1000
from Defendant in a prior exchange. Plaintiff claims that the
2013 batch is at issue in the case sub judice.
plead that the locknuts and bolts were repeatedly
re-installed due to the locknuts continuously failing and
shearing off of the old bolts. Plaintiff contacted Defendant
regarding this failure. Subsequently Defendant sent out a
representative to inspect the materials. Plaintiff alleges
that the Defendant's representative determined that the
locknuts were defective. Subsequently Defendant replaced the
1, 000 locknuts and bolts at no charge. Defendant's
personnel told Plaintiff that that they should not be using
an impact wrench to install the nuts because this application
method destroys the waxy lubricant on the nut.  Prior to this
conversation the teeth on the grinder were installed using an
air driven impact wrench. The fasteners allegedly always held
and the teeth never detached from the drum when Plaintiff
used this method.  Plaintiff's personnel subsequently
installed all nuts on the teeth using a torque wrench, but
the problem allegedly still existed.
had the mill drum assembly on the grinder removed and upon
inspection Plaintiff alleges that the drum was damaged beyond
repair. Mr. Strobert in his deposition stated that the 2013
batch was different than the previous batch purchased from
Defendant. In the 2013 batch he "could actually see the
metal from the nut just shearing off the threads."
Plaintiff alleges that Defendant distributed defective
locknuts and bolts ("2013 batch") to Plaintiff
which resulted in damage to Plaintiff's Peterson 6710B
Grinder. Plaintiff claims that it purchased a new mill drum
rotor and expended $89, 481.15 in labor and materials to
remove and replace the drum rotor.
David Pope's Report
retained David P. Pope, Ph.D. as an expert witness. Dr. Pope
opined that the failure of the locknuts and bolts resulted in
irreparable damage to the drum on the grinder. The drum of
the grinder is a large rotating device that is 46 ½
inches in diameter and 69 3/8 inches long. It weighs 16, 000
pounds and has 24 replaceable grinding teeth. Each of these
teeth are attached to the perimeter of the drum with
7/8" diameter and 7" long grade 8 bolts with
washers and grade C prevailing torque nuts. This drum rotates
at 840 to 900 rpm and grinds large diameter logs. Dr. Pope
opined that the drum was damaged when fasteners failed;
releasing grinding teeth, which then damaged other parts of
Pope performed multiple tests on the batches provided by
Plaintiff. His goal was to determine if an impact wrench
destroyed the lubricant which damaged the threads. Only one
unused nut from the 2013 batch was provided to Dr. Pope for
testing. Dr. Pope did not test the one unused nut in the
formulation of his report. Defendant states they are still in
possession of the remainder of the 2013 batch, and have
offered Plaintiff the opportunity to test the remaining
pieces. Plaintiff however, has not done so.
Parties' Contentions Regarding the ...