Opinion
No. 01 CV 6959.
September 1, 2004
ORDER
Plaintiff Elissa Cibbarelli brings this products liability action for injuries sustained aboard a Dash-8 turboprop aircraft manufactured by a corporation later purchased by defendant. She asserts the following claims: (1) negligent manufacture; (2) defective design; and (3) breach of express and implied warranties. Plaintiff also advances a failure to warn theory, claiming that defendants breached their duty to warn her of the dangers of extreme turbulence. Defendants move for summary judgment seeking dismissal of all of plaintiff's claims, arguing that the testimony of plaintiff's expert does not meet the standard of admissibility set forth in Rule 702 of the Federal Rules of Evidence and must be excluded. For the reasons stated below, I conclude that the testimony of plaintiff's expert must be excluded, that plaintiff does not raise an issue of fact that a defect existed in the aircraft's design, and that defendants are therefore entitled to summary judgment on plaintiff's defective design claim. There also are no issues of fact with respect to negligent manufacture, breach of warranty, or failure to warn, and defendants are thus entitled to summary judgment on those claims as well.
FACTUAL BACKGROUND
Unless otherwise indicated, the following facts are not disputed.Plaintiff began working as a flight attendant for Allegheny Airlines, later acquired by U.S. Airways Express, in 1993. She received instructions on how to fly on a Dash-8 airplane and an additional turboprop aircraft, consisting of an eight-week training course at the start of her employment and yearly two-day refresher courses. While plaintiff was working as a flight attendant on September 27, 1998, the plane experienced an initial incident of mild turbulence. Plaintiff testified that, at that time, she was located at about row five of the aircraft. Plaintiff stabilized herself using the back of a seat at row five and then proceeded with her walkthrough of the cabin. When she reached approximately row one of the aircraft, there was what the plaintiff described as a "jolt" of turbulence that caused her to fall forward onto her knees into the galley area of the aircraft. It is unclear which direction she was facing when she fell, but plaintiff testified that she turned around to face the passengers. For a period of approximately 40 seconds, there was continued mild turbulence but the aircraft was relatively calm. During this time, plaintiff maintains she was able to get to her feet; however, she claims she was still unsteady and proceeded to try to grab onto something to allow her to stabilize herself and get into the jump seat. It is undisputed that plaintiff was not able to open her jump seat, and she therefore was not restrained in it when, at the end of the 40 seconds of relative calm, the aircraft encountered a period of extreme "clear air" turbulence. The aircraft dropped approximately 1000 feet during this time. Plaintiff was thrown around the galley area and sustained injuries including a compression fracture.
Plaintiff offers the testimony of Dr. Gerry Leisman as an expert in "human factor safety" and "man-machine interaction." She seeks to introduce his opinion that equipping the aircraft with strategically placed handholds in and around the galley area would have prevented or mitigated her injuries because such handholds would have allowed plaintiff to stabilize herself, reach her jump seat, and restrain herself in her jump seat during the period of relative calm immediately preceding the extreme turbulence incident. Dr. Leisman has a doctorate in neuroscience and biomedical engineering and is a professor of rehabilitation sciences, cognitive neuroscience and human factors. He has published over 200 papers and texts in man-machine interactions, perceptual motor skills, systems theory, movement control, human factors, and the effects of traumatic injury on the nervous system. He stated in his deposition that he is not an expert in avionic design or aircraft in terms of air worthiness and the functioning of aircraft's mechanical components. He also testified that he has never been involved in the design of any aspect of aircraft interiors.
In formulating his conclusions in this case, Dr. Leisman did not physically inspect the aircraft itself or take measurements of the galley area. Plaintiff claims that he reviewed blueprints and photos of the aircraft, but these documents are not listed in the section of the expert's reports that list what he relied on in reaching his conclusions. Dr. Leisman testified that he has traveled on other Dash-8 aircraft on numerous occasions and is familiar with their layout. Dr. Leisman did not know plaintiff's exact location in the aircraft at the time of the turbulence episode. He conducted no testing of the aircraft or of any prototype handhold to determine its efficacy and has not submitted any proposed design for the handholds that he suggests could have prevented or mitigated the accident. However, he points to the existence of handholds on other aircraft that he observed while a passenger as evidence that such handholds exist and are feasible to install. Although he did not test any of the structures in the galley of the aircraft that existed at the time of the accident, which defendants suggest might have served as handholds of the type he theorizes, Dr. Leisman testified that the straps on the jump seat could serve as handholds only if they were not set too tightly against the seat. Plaintiff testified that the seat belt straps were set flush against the bulkhead and did not stick out from the jump seat. Regarding the handrail on the exit stairs, Dr. Leisman testified that it was not close enough to plaintiff to serve as an appropriate handhold. However, he also testified that he did not know plaintiff's exact location at the time of the accident, and he made no measurements of the galley area. Plaintiff testified that everything in the galley area was within arms' reach when standing and that she could touch the forward door air stairs when sitting in the jump seat.
Dr. Leisman did not offer a design for the proposed handholds and has not indicated specifically where in the aircraft they should be located. His initial report concluded that plaintiff "would have been able to ride down the turbulence as do `strap hangers' on rapid transit rail lines" if there had been a handhold or other stabilizing device available to her. However, after reviewing the raw data from the flight data recorder, which had been available to him prior to his first report but which he did not independently inspect — relying instead on the FAA report of the incident — Dr. Leisman changed his theory to conclude that, while plaintiff could not have withstood the forces merely by holding on to a handhold, strategically placed handholds would have allowed plaintiff to reach her jump seat during the period of relative calm in order to restrain herself.
DISCUSSION
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Ginsburg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 270 (2d Cir. 1979). The burden then shifts to the non-movant to present "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
In determining this summary judgment motion, the court must first determine the admissibility of plaintiff's proffered expert testimony. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). Rule 56(e) requires that affidavits supporting and opposing summary judgment should "set forth such facts as would be admissible in evidence." Therefore, "it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment," and the trial court need only consider admissible evidence in ruling on a summary judgment motion. Raskin, 125 F.3d at 66.
Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which 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) 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.
Under the test established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), an expert's proffered opinion must be both reliable and relevant to be admissible. See Daubert, 509 U.S. at 597. Daubert set out four non-exclusive factors to assist in evaluating the reliability of an expert's reasoning and methodology: (1) whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation in the case of a particular scientific technique; and (4) whether the theory or method has generally been accepted by the scientific community. Id. at 593-94.
Design Defect Claim — Admissibility of Dr. Leisman's Testimony
The central issue in this summary judgment motion is whether Dr. Leisman's testimony is admissible. I find that it is not. Dr. Leisman's background and experience in human factors analysis do not qualify him to give an expert opinion on the issue in this case, i.e., whether the aircraft's design is defective. His expertise regarding man-machine interactions and the general design of work spaces to avoid injury is not enough to support an expert opinion on the design of the aircraft's galley. See United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) ("To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony."). Dr. Leisman's observations while a passenger on other aircraft are not a basis for expert opinion evidence. Plaintiff's contention that these observations were "equivalent to a clinical inspection" is rejected.
Furthermore, Dr. Leisman's theory is speculative and untested. He did not inspect the aircraft; his theory does not incorporate the dimensions of the aircraft; he does not know the specific position of the plaintiff immediately prior to the accident and cannot say what direction she was facing when the turbulence occurred; he made no effort to reconstruct the accident; and he has not tested his theory in any way. Thus, Dr. Leisman's theory amounts to a speculative conclusion supported by no identifiable methodology. See Brooks v. Outboard Motor Corporation, 234 F.3d 89, 91-92 (2d Cir. 2000) (upholding district court's exclusion of expert testimony in case involving a motor boat accident in part because the expert failed to test his theory and did not know the victims' placement in the boat at the time of the accident). Additionally, Dr. Leisman did not offer an alternative design with any specificity and has not presented his design to the aircraft design community, let alone shown its acceptance within that community. Dr. Leisman admitted during deposition that he speculated as to where plaintiff was during the turbulence. He also admitted that his initial use of the FAA report instead of data from the flight data recorder was not in accordance with best practices. Thus, his testimony must be excluded because it is based on unfounded speculation and is unreliable under Daubert principles. Cf. Zaremba v. General Motors Corp., 360 F.3d 355, 357-58 (2d Cir. 2004) (upholding district court's exclusion of expert in case involving a Trans Am rollover accident where expert's theory was not supported by measurements or calculations and had not been tested or subject to peer review, and expert had not made a drawing or model of his alternative design).
Plaintiff's design defect claim cannot proceed without expert testimony. In order to establish that an alternative design would have permitted plaintiff to stabilize herself in light of the particular forces being applied to the aircraft and her body, she must present an opinion from a person with specific technical and scientific knowledge beyond the ken of an average person. Without such evidence, the jury cannot fairly decide the issue. Since I am excluding Dr. Leisman's testimony, this claim fails as a matter of law and defendants are entitled to summary judgment. Remaining Claims
1. Negligent Manufacture
The "essence of [a negligent manufacturing] claim is that a product did not perform as intended because it was misconstructed." David v. Makita U.S.A., Inc., 233 A.D.2d 145 (1st Dep't 1996); see also Colon v. BIC USA, Inc., 199 F.Supp.2d 53, 85-86 (S.D.N.Y. 2001). The David court dismissed the plaintiffs' claim because they had not alleged that the product in question failed to perform in accordance with its design. See id.
Here, there is nothing in the record to show that the aircraft was manufactured improperly. Rather, the aircraft was built as designed. Thus, there is no genuine issue of material fact regarding plaintiff's negligent manufacture claim, and defendants' motion for summary judgment on this claim is granted.
2. Breach of Warranty
Under New York law, the statute of limitations for breach of warranty claims for products sold after September 24, 1964 is four years. See N.Y.U.C.C. § 2-725; Fazio v. Ford Motor Co., 69 A.D.2d 896 (2d Dep't 1979). The time to bring a breach of warranty claim runs from the date of sale of the product. See Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411 (1985); Fazio, 415 N.Y.S.2d at 889. It is undisputed that plaintiff's employer purchased the aircraft in 1989, and that plaintiff's injuries were sustained on September 27, 1998. Plaintiff offers no argument that her breach of warranty claim is not time-barred under Section 2-725. Furthermore, plaintiff has offered no evidence that the aircraft failed to perform in a manner consistent with its intended use and therefore cannot make out a breach of warranty claim. See David v. Ford Motor Co., 87 N.Y.2d 248, 258-59 (1995); Castro v. QVC Network, 139 F.3d 114, 116-18 n. 4 (2d Cir. 1998). Defendants' motion for summary judgment on this claim is granted.
3. Failure to Warn
Plaintiff contends defendants are liable for failing to warn her of the risk of harm from extreme turbulence such as occurred in the incident that led to her injuries. It is undisputed that there were no warning signs as to turbulence posted in the aircraft and that defendants never disseminated any literature concerning the risks of clear air turbulence.
Although negligent failure to warn claims are intensely fact specific, in some circumstances, the undisputed facts may be sufficient to warrant dismissal as a matter of law. See Liriano v. Hobart Corp., 92 N.Y.2d 232, 241-42 (1998). Thus, the New York Court of Appeals has noted that a "limited class of hazards need not be warned of as a matter of law because they are patently dangerous or pose open and obvious risks." Liriano, 92 N.Y.2d at 241-42. Such hazards for which there is no duty to warn are "those risks and dangers which could have been or should have been appreciated by the user or that can be recognized as a matter of common sense." Pigliavento v. Tyler Equip. Corp., 248 A.D.2d 840, 842 (3rd Dep't 1998); see also Hutton v. Globe Hoist Co., 158 F. Supp. 2d 371, 376 (S.D.N.Y. 2001) (citing Liriano).
Plaintiff is a flight attendant who had training and experience in the dangers of air turbulence. It is undisputed that plaintiff was a professional flight attendant who served on Dash-8 and turboprop aircraft for five years before the accident. It is also undisputed that plaintiff had experienced turbulence onboard these aircraft in the past. Plaintiff testified that U.S. Airways Express and Allegheny Airlines instructed their flight attendants, including plaintiff, to go to their jump seat or any available seat as soon as possible when the aircraft experienced turbulence, and that she knew of this procedure prior to the accident. Indeed, plaintiff testified that after the turbulence knocked her off balance at the front of the aircraft, she attempted to get to her jump seat. Plaintiff acknowledged that, prior to the accident, she understood that turbulence sometimes "comes out of nowhere." Thus, she cannot claim that any warning from defendants would have given her greater knowledge of the obvious danger posed by clear air turbulence. Given this undisputed evidence regarding plaintiff's training and experience as a professional flight attendant, no reasonable jury could conclude that defendants had a duty to warn her about the dangers associated with turbulence.
CONCLUSION
For the reasons stated above, defendants' motion for summary judgment on all of plaintiff's claims is granted. The Clerk of Court is directed to enter judgment for defendants and to close this case.
SO ORDERED.