Opinion
No. 02 Civ. 6887 (JSR) (KNF).
July 14, 2005
MEMORANDUM and ORDER
In accordance with Rule 104 of the Federal Rules of Evidence, each party to this action has requested that the Court bar the other party from offering to the jury opinion evidence from a witness(es) concerning scientific, technical or other matters about which, it is alleged, the proposed witness(es) has specialized knowledge. In support of their respective requests, and in accordance with an Order of the Court, the parties have made written submissions to the Court that have been considered. The requests made by each party are addressed below.
Application to Preclude Testimony of Gary Robinson
The plaintiff proposes to have Gary Robinson ("Robinson"), a certified safety professional, "explain several specific topics on meat grinders to the jury." The defendant contends that "Robinson's opinions are barren of any testing or recognized methodology" and, as a consequence, Robinson is not qualified to give opinion evidence to the jurors who will be assembled for the trial of this case. The plaintiff maintains that Robinson has given opinion evidence in many cases previously and should be allowed to do so in this case. Furthermore, according to the plaintiff, inasmuch as the defendant's "indemnitor, Hobart, which is controlling this case, has already challenged [Robinson] in this Court (the Southern District), three times, and lost all three challenges" it "should be estopped from challenging" Robinson's testimony in the instant action.
Fed.R.Evid. 702 provides the following:
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.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), the Supreme Court explained that a federal trial court has a gatekeeping responsibility when opinion evidence is sought to be presented to a jury. The court must ensure that the testimony to be presented to the jury is based upon methods and procedures that are reliable; that is, "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590, 113 S. Ct. at 2795. In order to fulfill the gatekeeping obligation placed upon it, a court cannot simply rely upon a Daubert ruling from a prior case in determining whether opinion evidence should be presented to a jury in the case before it. This is so even where the issues and the expert witnesses are the same in both cases. A new Daubert ruling must be made for each case. See Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003); Coburn v. Smithkline Beecham Corp., 174 F. Supp. 2d 1235, 1240 (D. Utah 2001). Therefore, the plaintiff's attempt to use the doctrine of collateral estoppel to fend off the defendant's challenge to the propriety of having Robinson give opinion evidence to the jury in the instant case is to no avail.
The topics upon which the plaintiff would like to have Robinson testify are nine in number. They are described in summary fashion below:
1. the problem of amputations caused by meat grinders was well-known in the meat grinder industry prior to the defendant's sale of the meat grinder that is at issue in the case at bar;
2. prior to the instant accident, "the industry" was aware that decreasing a meat grinder's cylinder opening was a means to minimize amputations;
3. different members of the meat grinder industry acted on the knowledge that smaller meat grinder cylinder openings minimize amputations because by the 1970s several meat grinder cylinder openings had been reduced in size from approximately 2½" to 2";
4. existing meat grinders with 2½" cylinders and meat grinders that were originally sold with 2½" cylinders "remain in the field" and were still being sold in the 1980s as used equipment. This is so because a meat grinder cylinder is usually a casting, a piece of pipe in the shape of an inverted "T" and may not wear out for 50 years or longer;
5. some companies took affirmative steps "to address the problem of 2½" cylinders," by, for example, instituting a product recall;
6. although the Enterprise model 2622 meat grinder, as originally designed, included a 2½" cylinder, "defendant never issued an advisory on that topic. Nor did defendant issue a post-sale warning or recall the 2622 [model meat grinder]." Although the defendant had a warning update program, the program did not address 2½" meat grinder cylinders "nor did the company tell its dealers not to sell Enterprise [meat] Grinders with 2½" cylinders";
7. the defendant should have issued post-sale warnings on the topic of 2½" meat grinder cylinders because they are unsafe and can cause amputations;
8. warnings to stop using or selling 2½" cylinders should have been forwarded to all sellers of used or new food equipment and should have been designed to be placed on the grinder motor housing; and
9. "the warnings could advise not to use 2½" cylinders at all or to use reducer sleeves to reduce the opening to 2½"."
In determining whether proffered opinion evidence should be presented to a jury, a court must focus on the principles and the methodology employed by the witness who will testify to his or her opinion and not on the conclusions that the principles and the methodology employed generate. See Daubert, 509 U.S. at 595, 113 S. Ct. at 2797. Robinson acknowledged, during a pretrial deposition given in connection with the instant action, that he never worked in the meat processing industry and never designed meat processing equipment. Robinson testified that he did not perform any tests or experiments in connection with the instant case. Robinson also testified that, with respect to this case, he did not rely upon any authoritative texts regarding meat processing equipment design. In addition, although in the past Robinson has referred to journals and articles in forming opinions and reaching conclusions, he did not do so specifically for this case.
At his deposition, Robinson stated that he never worked for a company that prepared instructions or product safety warnings for the meat grinding industry, and he was unable to identify any authoritative textbooks on product safety warnings. Moreover, Robinson conceded that he had not relied upon any authoritative texts in forming the opinions and reaching the conclusions regarding product safety warnings that he intends to convey to the jury in this case. In addition, Robinson acknowledged that protocols for testing product safety warnings exist; however, he did not conduct any tests or prepare, review or employ any protocols pertinent to meat grinder equipment warnings in connection with the case at bar. Robinson indicated that in preparation for the testimony he would give at the trial, he consulted with the plaintiff's counsel and reviewed the pleadings and certain photographs that were exchanged by the parties during the pretrial discovery phase of the litigation, which were provided to him by counsel to the plaintiff.
Based upon the record evidence, it appears that the plaintiff is asking the Court to permit Robinson to give opinion evidence at the trial concerning meat grinder industry equipment designs and meat grinder equipment safety warnings based upon knowledge Robinson has acquired over an unspecified amount of time from "authoritative texts," journals and articles that he could not identify at his deposition and which, in any event, he did not consult or rely upon in reaching the conclusions and forming the opinions he wishes to convey to the jury. This the Court will not do.
"[T]he word knowledge connotes more than subjective belief or unsupported speculation. The term `applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.'" Daubert, 509 U.S. at 590, 113 S. Ct. at 2795 (citation omitted). From the submissions the parties made to the Court, it is clear that Robinson lacks practical experience designing meat grinding equipment or preparing product safety warnings for such equipment. Robinson reports having reviewed pertinent journals and other publications previously; however, he could not identify these publications and he did not indicate when he reviewed them. Consequently, it is not possible for the Court to assess the publications or to know whether the information Robinson acquired from those writings was and continues to be of utility such that reliance on that information, as a means of acquiring "specialized knowledge," is a reasonable and appropriate methodology. Furthermore, without knowing what publications are at issue, the Court cannot know whether the information contained in the writings is relevant to the subject matter areas about which the plaintiff would have Robinson testify. It is incumbent on any party seeking to offer opinion evidence to provide the court with information of this kind since a court must be secure in the belief that an opinion witness' conclusions and opinions have a reliable foundation or rest on good grounds before authorizing that witness to testify at a trial. See Campbell v. Metropolitan Property and Cas. Ins., 239 F.3d 179, 184-5 (2d Cir. 2001); In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994).
In the case at bar, the Court finds that the record does not contain specific factual information of sufficient quantity and quality from which it can determine that the conclusions and opinions the plaintiff wants Robinson to convey to the jury have a solid foundation, are the product of something more than subjective belief and are based on reliable principles and methods. The dearth of tangible information in the record, concerning: (a) the underpinnings of the opinions and conclusions Robinson proposes to give to the jury; and (b) whether those opinions and conclusions are based upon sufficient facts and data or upon reliable principles and methods that have been applied specifically to the facts of this case, leads the Court to conclude that Robinson should not be permitted to provide opinion evidence to the jury during the trial of this action.
Application to Preclude Testimony of Jose Ramirez
In what appears to be an exercise in abundant caution, the defendant has requested that the plaintiff's father, Jose Ramirez, be barred from giving opinion evidence at the trial of this action concerning: (a) anthropometrics; and (b) product identification. Specifically, the defendant contends that Mr. Ramirez should be prevented from informing the jury that: (i) the plaintiff's hand, due to its size, could not pass through a meat grinder cylinder opening that was smaller than 2½"; (ii) the defendant should not have used a 2½" cylinder on its meat grinder; (iii) the defendant should have warned prospective users of such a meat grinder about the "dangers 2½" cylinders pose" if the defendant was aware that "a person's hand could pass through" a meat grinder cylinder, that "such accidents happened regularly, and that many of them involved children." Moreover, the defendant contends that Mr. Ramirez should not be allowed to testify that the cylinder on the meat grinder that he purchased was an Enterprise model 2622 cylinder. According to the defendant, based on statements Mr. Ramirez made through a sworn affidavit the plaintiff submitted in opposition to the defendant's previously filed motion for summary judgment, opinion evidence will be sought from Mr. Ramirez by the plaintiff at the trial of this action. However, in that affidavit, Mr. Ramirez makes clear that the statements made by him in that document were being made in his capacity as "a fact witness" and not as a witness qualified to give opinion evidence.
In any event, inasmuch as the submissions made by the parties do not indicate that Mr. Ramirez has any scientific, technical or other specialized knowledge that would assist the jury in understanding the evidence that might be presented at the trial or in determining a fact in issue, Mr. Ramirez does not fit within the parameters of Rule 702 of the Federal Rules of Evidence. Therefore, he cannot be permitted to testify in the form of an opinion. The record before the Court does not indicate that the plaintiff seeks to elicit testimony from Mr. Ramirez in a capacity other than that of a "fact witness." Accordingly, that is the only capacity in which testimony offered through Mr. Ramirez might properly be received into evidence.
Application to Limit Testimony of William C. Schlieper
The plaintiff contends that William C. Schlieper ("Schlieper"), an electrical engineer who holds the title Director of Product Design Policy for ITW Food Equipment Group d/b/a Hobart Corporation ("Hobart"), should be barred from giving opinion evidence at the trial of this action "as an `expert' on the topic of identifying Enterprise Model 2622 [meat] grinder cylinders." The plaintiff does not challenge Schlieper's qualifications to give opinion evidence at the trial on other subject matter areas about which the defendant has indicated it will attempt to elicit trial testimony from him.
According to the plaintiff, Schlieper is not qualified to testify in the form of an opinion about identifying Enterprise model 2622 meat grinders because, inter alia, while being deposed in connection with this action, Schlieper could not state definitely that he had ever seen such a cylinder. Furthermore, Schlieper stated that he did not possess a blueprint for such a cylinder and did not know whether, in the early 1950s, Enterprise had a foundry at which it cast its own cylinders. In addition, Schlieper was unable to state whether all "2622 cylinders" bore the mark "Enterprise" or whether all 2622 cylinders looked alike. As a consequence of Schlieper's ignorance concerning these and other matters, the plaintiff maintains that Schlieper's testimony as an `expert' on identifying "2622 cylinders" is inherently unreliable and should not be allowed to be presented to the trial jury.
The submissions made by the parties indicate that, beginning in 1966 and continuing to the present, Schlieper assumed progressively more responsible engineering and administrative assignments for Hobart. Schlieper's assignments have included: (a) performing machine shop and engineering laboratory work; (b) testing and operating Hobart equipment; (c) serving as a liaison with the Underwriter's Laboratory, (d) reviewing product designs for compliance with Underwriter's Laboratory standards; and (e) conducting safety, sanitation and performance reviews of existing and proposed Hobart products. Schlieper reports that as Hobart's director of product design policy, he is responsible for examining product warnings, functions, and safety, as well as product identification. Schlieper also reports that he maintains professional memberships with the Underwriter's Laboratory's standards technical panels that focus on commercial electric dishwashers and commercial food preparing machines.
In connection with the instant case, Schlieper reviewed the following documents: the deposition transcripts of Robinson Ramirez, Aracelis Ramirez, Jose Ramirez, Rafael Ramirez, Enoch Brady, Ana Ramirez and Diane Snyder. He also reviewed the Rapid Manufacturing Company's meat chopper brochure; the catalog of the Intedge Company; the expert disclosures made by the plaintiff to the defendant in this action; pertinent photographs exchanged by the parties during the pretrial discovery phase of the litigation; industry standards; state safety regulations and labor laws; anthropometric data; and the pleadings relevant to this action. According to the defendant, based upon Schlieper's background, education and experience, he is prepared and qualified to offer opinion evidence on behalf of the defendant concerning meat grinder designs, product identification, product safety warnings, meat grinder design defects and government and industry standards applicable to meat grinders.
As noted above, the plaintiff contends that Schlieper's proposed testimony on identifying Enterprise model 2622 meat grinder cylinders is inherently unreliable and the jury must be shielded from it. In all other respects, the plaintiff concedes that Schlieper may give opinion testimony on the matters about which the defendant is likely to examine him at the trial. Notwithstanding the plaintiff's concession about Schlieper's qualifications to give opinion testimony concerning matters other than the identification of the Enterprise model 2622 meat grinder cylinder, the Court has, in keeping with its gatekeeping responsibility, considered the various factors noted earlier in this writing that should be weighed by a court in determining whether a witness should be permitted to give opinion testimony at a trial. Based upon its analysis of those factors, the Court finds that in forming the opinions and reaching the conclusions the defendant wants Schlieper to impart to the jury, Schlieper has drawn upon his education as an electrical engineer, his hands-on experience designing electrical food preparation equipment and reviewing existing and proposed standards applicable to the products manufactured by his employer, including products used in the food preparation industry. In addition, Schlieper has reviewed and relied upon much of the information generated and exchanged by the parties during the pretrial discovery phase of the litigation.
Drawing upon one's educational background and practical experience is a reliable methodology through which to develop opinions and reach conclusions about scientific, technical or other areas of specialized knowledge. A witness, such as Schlieper, who has employed this methodology may be permitted to give opinion evidence to a jury. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1995). The fact that Schlieper may not have encountered the Enterprise model 2622 meat grinder cylinder in his past and may never have seen a blueprint of the design for that model meat grinder cylinder does not mean that he is unable to draw upon his education, training, experience and technical or other specialized knowledge, and apply those attributes to the facts that have been unearthed during the pretrial discovery phase of the litigation, and have been made known to him, in order to reach certain conclusions and form opinions that would be helpful to the triers of fact in this case. See Lappe v. American Honda Motor Co., Inc., 857 F. Supp. 222, 226-27 (N.D.N.Y. 1994). The plaintiff has not demonstrated that Schlieper failed to apply his knowledge and experience to the facts of this case in a reliable manner. Nor has the plaintiff demonstrated that Schlieper will not bring to "the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,"see Wills v. Amerada Hess Corp., 379 F.3d 32, 48 (2d Cir. 2004) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176), if he is permitted to testify on behalf of the defendant. Therefore, the Court finds that the defendant may elicit opinion evidence from Schlieper at the trial of this action on all of the subject matter areas about which the parties' submissions indicate Schlieper is prepared to opine. Application to Preclude Testimony of James H. Somerset, P.E.
The plaintiff seeks to prevent the defendant from offering opinion evidence from James H. Somerset, a professional engineer who holds the title Research Professor, Department of Mechanical Aerospace and Manufacturing Engineering at Syracuse University. According to the plaintiff, the opinions and conclusions that the defendant proposes to have Somerset convey to the jury at the trial of this action are unreliable and irrelevant. Furthermore, the plaintiff contends that two other witnesses from whom the defendant seeks to elicit opinion evidence, Schlieper and Dr. Jane T. Welch ("Welch"), will provide testimony that Somerset's testimony would duplicate. The plaintiff maintains that repetitious testimony is unnecessary and should be barred from the trial.
In a report Somerset prepared for the defendant in connection with this action, he set forth 12 opinions and conclusions that he would present to the jury if he is permitted to testify at the trial of this action. The Court has reviewed Somerset's report and has compared the information contained in it to the comparable reports prepared by Schlieper and Welch. To the extent that Somerset's report touches upon the utility of post-sale safety warnings that might have been issued to product operators concerning the use of a meat grinder with a 2½" cylinder opening, and the effect that any warning placed on the subject meat grinder would have had on the grinder's purchaser, the plaintiff's father, these are matters that are covered in the report prepared for the defendant by Welch. Welch, as will be discussed later in this writing, provides consultative services to manufacturers keyed to developing safety-related communications including product safety warning labels.
Somerset's conclusions concerning: (i) the origin of the meat grinding apparatus that is the focus of this action; and (ii) whether a 2½" meat grinder cylinder is a defective product, are matters about which Schlieper is qualified and, based upon the submissions made by the defendant, prepared to discuss at the trial. Other areas about which Somerset and Schlieper appear destined to provide repetitive opinion evidence include meat processing equipment industry standards and pertinent government regulations. Fed.R.Evid. 403 counsels against the presentation of repetitious evidence in order to avoid the unnecessary consumption of trial time. No basis exists here to ignore that Rule's admonition.
The remaining conclusions and opinions expressed in Somerset's report, i.e., that: (1) "the mere happening of an accident does not establish a defect;" (2) the meat grinder's motor drive was not a defective product; (3) the use of a "sleeve" or "reducer" when operating the meat grinder at issue in this case "would raise additional concerns [respecting] sanitation" and would not necessarily have prevented the accident; and (4) the plaintiff's hand would have been able to enter a meat grinder with a two-inch cylinder opening, are conclusions and opinions for which Somerset has not provided sufficient facts and data or otherwise established that he employed reliable principles and methods in forming these opinions and reaching these conclusions. Without that foundational information, the Court is unable to conclude that the jury should be allowed to hear Somerset's conclusions and opinions on these matters.
Application to Preclude Testimony of Dr. Jane T. Welch
The plaintiff contends that the defendant's desire to elicit opinion evidence from Welch should be barred because the thrust of her proposed testimony is that the plaintiff's father was negligent in monitoring the environment where the meat grinding apparatus that injured the plaintiff's hand was operated, and that this negligence allowed the plaintiff to access the meat grinder, resulting in the amputation of his hand.
Welch holds a doctorate in English from Syracuse University. She has also received graduate training in business administration at the University of Texas, San Antonio. Among other things, she has taught business communications courses at universities in New York and Texas, and is the president of JT Welch Associates, Inc. Communication Services. In that capacity, Welch provides consultative services on and develops safety-related communications for industrial clients. Drafting owners' and operators' manuals, as well as packaging and on-product labels, are among the services Welch provides to her clients. She also organizes, designs and writes materials that conform to current standards and research on safety and warning information transmittal and cognition. Welch reports that she has studied the effectiveness of safety warnings and compliance factors governing such warnings. She has also developed manuals, brochures, labels and other sources of safety-related communications for manufacturers of a wide range of products.
It appears from the submission made by the defendant that Welch will be asked to give opinion evidence concerning the product safety warnings, if any, that might have been issued to users of the meat grinder equipment that is central to this case. The defendant contends that the opinions Welch will offer through her testimony are based on Welch's education, experience and research in the field of safety information and product safety warning communications, as well as her review of the pleadings in the instant action, the deposition testimony given by Jose Ramirez, Robinson Ramirez, Rafael Ramirez, Enoch Brady, Ana Ramirez and Diane Snyder. In addition, Welch has reviewed photographs pertinent to this action, materials disclosed by the defendant pursuant to Rule 26(a) of the Federal Rules of Civil Procedure, the report prepared by Robinson, and the answers provided by the plaintiff to interrogatories that the defendant presented to him during the pretrial discovery phase of the litigation.
The Court does not share the plaintiff's view that Welch's opinion evidence will focus on the negligence, if any, of the petitioner's father in monitoring the area where he determined to use the meat grinder through which his son suffered an injury. While Welch does speak to the issue of negligence in her report, her background, training and education do not lend themselves to her opining on that issue. Rather, her proffered testimony concerning what product safety warnings, if any, should have been issued concerning the operation of the meat grinder that the plaintiff's father purchased, is the only relevant testimony that she is qualified to give based upon the "specialized knowledge" she has garnered through her education and experience researching and developing manuals, brochures, labels and other safety-related communications for manufactured products, and through her analysis of the material provided to her by the defendant's counsel. As discussed, supra, drawing upon one's education and practical experience is an appropriate and reliable methodology upon which to rely in forming opinions and reaching conclusions. See McCullock, 61 F.3d at 1043. Moreover, Welch's practical experience developing product safety warnings and academic background are factors that Rule 702 of the Federal Rules of Evidence allows a court to consider and accept as bases upon which to permit a witness to testify in the form of an opinion at a trial. Therefore, in the instant case, the Court finds that the defendant may elicit opinion evidence from Welch on the issue of product safety warnings.
SO ORDERED.