Summary
applying Arizona law because parties did not dispute choice of law and both applied Arizona law in their briefs
Summary of this case from Stinnett v. Delta Air Lines, Inc.Opinion
09-cv-7104 (GBD)
01-24-2012
KRISTOPHER KARNAUSKAS, Plaintiff, v. COLUMBIA SUSSEX CORP., MARRIOTT INTERNATIONAL INCORPORATED, and SUNBEAM PRODUCTS, INCORPORATED, Defendants.
MEMORANDUM DECISION AND ORDER
:
This case arises out of personal injuries sustained by plaintiff Kristopher Karnauskas when he severed a tendon in his hand while using a coffee maker at the Phoenix Arizona Marriott Airport Hotel. The glass carafe of the coffee maker shattered and shards of glass drove into his hand, injuring plaintiff. Defendant Marriott International, Inc. ("Marriott") licensed the hotel to Columbia Properties Phoenix LP ("Columbia Properties") for operation as a Marriott hotel. At the time of the accident, defendant Columbia Sussex Corporation ("Columbia Sussex") was under agreement with Columbia Properties to manage the hotel. Plaintiff alleges claims in negligence against Columbia Sussex and Marriot, as well as products liability claims, including strict liability based on design defect, against Sunbeam. All defendants move for summary judgment. Sunbeam also moves to exclude the testimony of plaintiff's expert witness, George Pecoraro.
Columbia Sussex's motion for summary judgment is DENIED. Marriott's motion for summary judgment is GRANTED. Sunbeam's motion to exclude plaintiff's expert witness and for summary judgment is GRANTED.
BACKGROUND
On January 11, 2009, plaintiff, a twenty-seven year old climate scientist, traveled to Phoenix, Arizona and checked into the Phoenix Arizona Marriott Airport Hotel. Karnauskas Dep. at 15. Shortly after plaintiff woke up the next morning, he went to use the coffee maker located on the desk of his hotel room. Id. at 16:18-24. Plaintiff removed the glass carafe from the coffee maker and walked to the bathroom to fill it with water. Id. at 16:22-25. Standing over the bathroom sink, plaintiff tried to remove the plastic lid from the carafe. Id. at 17:2-3. The lid fell into the carafe. Id. Holding the carafe with his left hand, plaintiff reached into the carafe with his right hand and tried to remove the lid. Id. at 17:7-11. Plaintiff alleges that, as he reached into the carafe, the glass shattered along the metal band near the handle of the carafe. Id. Plaintiff sustained a cut to his left hand, severing the flexor tendon between his thumb and forefinger. Pl. Am. Compl. ¶ 13. Plaintiff called for assistance and was placed in a cab by hotel staff and taken to a nearby hospital for treatment. Karnauskas Dep. at 20:7-21. Later that day, a hand surgeon at a different hospital reattached the severed tendon in plaintiff's left hand. Pl. Am. Compl. ¶ 13.
While plaintiff was being treated for his injury, Maria Otero, a housekeeper at the hotel, entered plaintiff's hotel room to conduct a routine cleaning. See Otero Dep. at 17:12-14. Otero testified that she observed broken glass and blood on plaintiff's bathroom floor. Id. at 17:15-21. Otero called her supervisor, Rosa Garcia, to notify her of the situation. Id. at 24-25. Otero cleaned the bathroom and disposed of the glass. Id. at 27:19-28.
The hotel was operated by Columbia Properties pursuant to a licensing agreement with Marriott dated October 16, 1997. See Marriott Licensing Agreement. The license agreement set forth that Columbia Properties would retain all operating control of the hotel as part of the "Marriott System." Id. at ¶¶ 2.1-11.3. The hotel was managed by Columbia Sussex pursuant to a management agreement between Columbia Sussex and Columbia Properties dated December 18, 1998. See Columbia Management Agreement. Under the management agreement, Columbia Sussex was responsible for the day-to-day management of the hotel. Id. at ¶¶ 5.1-5.3.
At the time of the accident, the hotel had 347 rooms. Bhatti Dep. at 12. Each room was equipped with a Sunbeam Model 3225 coffee maker--the model involved in plaintiff's accident--or a similar model. Id. at 12. Hotel management had certain procedures in place for inspecting and replacing coffee carafes. Garcia, who was executive housekeeper at the hotel, testified that she held meetings instructing staff to, among other things, clean and inspect the coffee carafes in each room. Garcia Dep. at 18-19. Housekeepers were also responsible for disposal and replacement of chipped or cracked carafes. Otero Dep. at 11-12. At their depositions, hotel General Manager Jeff Bhatti and housekeeping supervisor Garcia testified that they were unaware of any past incidents in which guests or hotel employees were injured by carafes. See Bhatti Dep. at 19; Garcia Dep. at 25; Otero Dep. at 36.
STANDARD OF REVIEW
Summary judgment is appropriate where the evidence, viewed in the light most favorable to the non-moving party, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Vacold, L.L.C. v. Cerami, 545 F.3d 114, 121 (2d Cir. 2008). The burden rests upon the moving party to show that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" only where it will affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue about the fact, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there is a genuine issue of material fact, the Court is required to resolve all ambiguities and draw all inferences in favor of the non-moving party. Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Where there is no evidence in the record "from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact," summary judgment is appropriate. Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir. 1996).
NEGLIGENCE CLAIM AGAINST MARRIOTT AND COLUMBIA SUSSEX
A. Choice of Law
Because jurisdiction in this case is predicated on diversity of citizenship, New York's choice of law rules apply. Bakalar v. Vavra, 619 F.3d 136, 139 (2d Cir. 2010) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 E.Ed. 1477 (1941)). Columbia Sussex and Marriott contend that Arizona law applies. Plaintiff does not contest choice of law in his brief, and cites both Arizona and New York law in support of his premises liability claim. Because the parties do not dispute choice of law, and both apply Arizona law in their briefs, the Court will apply Arizona law to plaintiff's premises liability claim.
B. Liability of Marriott
Plaintiff alleges Marriott should be held vicariously liable based on its licensing agreement with Columbia Properties. The majority of courts apply a degree-of-control analysis to determine whether a licensor is liable for the negligent operation of a licensee. Licensors, like franchisors, may be held liable for injuries occurring on the premises of the licensee if the licensor has considerable day-to-day control over the specific instrumentality that is alleged to have caused the harm. See, e.g., Wendy Hong Wu v. Dunkin' Donuts, Inc., 105 F.Supp.2d 83 (E.D.N.Y. 2000) (restaurant franchisor not vicariously liable for security lapses because franchise agreement did not give franchisor considerable control over instrumentality at issue); Viches v. MLT, Inc., 127 F.Supp.2d 828, 832 (E.D.Mich. 2000) (hotel franchisor not liable for franchisee's negligent use of pesticides where franchise agreement does nothing more than insure "uniformity and standardization . . . of services"); Pizza K., Inc. v. Santagata, 249 Ga.App. 36, 547 S.E.2d 405, 406-07 (2001) (pizza franchisor not liable for auto accident caused by franchisee delivery driver because franchisor was "not authorized under the agreement to exercise supervisory control over the daily activities of [franchisee's] employees"); Hart v. Marriott Intern., Inc., 304 A.D.2d 1057, 758 N.Y.S.2d 435 (3d Dep't 2003) (hotel franchisor not liable for alleged negligence of franchisee because franchise agreement did not give franchisor day to day control); Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, 273 Wis. 2d 106, 682 N.W.2d 328 (2004) (finding franchisor not liable because "[c]onsistent with the majority approach . . . standardized provisions commonly included in franchise agreements specifying uniform quality, marketing, and operational requirements and a right of inspection do not establish a franchisor's control or right to control the daily operations of the franchisee sufficient to give rise to vicarious liability").
Arizona courts have not addressed specifically the area of licensor liability, but have applied concepts similar to the degree of control test employed by the majority of jurisdictions in cases involving franchisor liability. The Court of Appeals of Arizona has held that a franchisor could be held liable in negligence for an injury that occurred at a franchisee location because the franchisor owned and leased the property and also selected, recommended, and inspected the instrumentality alleged to have caused the harm. See Papasthatis v. Beall, 150 Ariz. 279, 723 P2d. 97 (App. 1986) (franchisor recommended and inspected soda machine involved in harm at franchise location). In sum, courts, including Arizona, consistently hold that franchisors and licensors, like defendant Marriott, must exercise more than a right to control uniformity of appearance and products to create a duty of care.
The Papasthatis court reasoned because the franchisor selected, recommended and inspected equipment at issue, it functioned as a gratuitous supplier within the meaning of Section 324(a) of the Restatement and could therefore be held liable for injury involving the equipment. 732 P.2d at 99-100.
Marriott did not have a duty of care to plaintiff because it did not have any day-to-day control over the hotel and did not select, recommend, or inspect the coffee carafe at issue. Marriott entered into a licensing agreement with Columbia Properties that set forth, in pertinent part, "Licensee shall retain and exercise full operating control of the Hotel... [and] shall have the exclusive authority for the day-to-day management of the Hotel." License Agreement at 19. Marriott does not own the hotel, nor does it have any management or operational responsibilities for the hotel. Id. at First Amendment to Agreement. While the agreement set forth Marriott's interest in insuring that Columbia Properties operated the hotel in a manner consistent with the Marriott brand, Marriott played no part in the day-to-day operation of the hotel. Cf. Carpiglione v. Radisson Hotels Intern., Inc., 2011 WL 4736310 at *2 (D.N.J. 2011) (finding defendant franchisor not liable because the franchisor of a hotel did not own or control hotel on day-to-day basis). In fact, Columbia Sussex managed the hotel pursuant to a separate management agreement with Columbia Properties; Marriott did not manage any aspect of the hotel. Plaintiff has provided no evidence that Marriott created, was responsible for, or should have been aware of a dangerous condition for which it may be held liable. Liability cannot exist where, as here, the licensor did not exercise any control over the instrumentality at issue. See Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228, 231 (Ariz. 2007) ("[A]bsent some duty, an action for negligence cannot be maintained"). Because Marriott did not have control over the day-to-day operations of the hotel or the instrumentality at issue in this case, it owed no duty of care to plaintiff, and summary judgment for Marriott is appropriate.
The license agreement between Marriott and Columbia Sussex contains a clause covering furnishings and fixtures, but plaintiff has produced no evidence showing that Marriott selected, recommended, or inspected the coffee maker at issue in this case.
C. Liability of Columbia Sussex
Defendant Columbia Sussex moves for summary judgment on plaintiff's cause of action for premises liability. Under Arizona law, a business "has an affirmative duty to make and keep [its] premises reasonably safe for customers." Chiara, 152 Ariz. At 399, 733 P.2d at 284. The owner of property has a duty to discover and warn an invitee about or protect an invitee from an unreasonable risk of harm on the property. Bellezzo v. State, 174 Ariz. 548, 551, 851 P.2d 847, 850 (App. 1992). The duty also entails reasonable inspection for dangerous conditions. Nicoletti v. Westcor, 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). The owner must have actual or constructive notice of the dangerous condition in order to be found liable. Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981). Constructive notice may be established by proof "'the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it.'" Chiara, 152 Ariz. at 400, 733 P.2d at 285 (quoting Walker v Montgomery Ward & Co., 20 Ariz.App. 255, 258, 511 P.2d 699, 702 (1973)). Arizona law recognizes the mode of operation rule, which relieves plaintiff from having to prove notice if the proprietor "could reasonably anticipate that hazardous conditions would regularly arise." Id. Regularly has been defined as "[c]ustomary, usual, or normal" for purposes of applying the mode of operation rule. Borota v. Univ. Med. Ctr., 176 Ariz. 394, 396, 861 P.2d 679, 681 (App. 1993) (internal citations omitted).
Defendant Columbia Sussex argues, and the record reflects, that aside from the testimony of hotel staff, there is little evidence of past problems with the carafes. The hotel did not keep records of the number of carafes it replaced, and there were no reported incidents of its hotel guests suffering injuries from broken carafes in the past.
Plaintiff argues that summary judgment is inappropriate because there is evidence that defendants had constructive notice of the dangers of the glass coffee carafes based on the hotel staffs' room inspection and carafe replacement policies. Specifically, plaintiff points to the depositions of the general manager of the hotel, Bhatti, and the executive housekeeper, Garcia, who separately testified that the hotel staff replaced a couple of dozen broken glass coffee carafes each year. Bhatti also estimated that the hotel ordered approximately "a couple dozen or a little less" replacement carafes each year. Bhatti Dep. at 15. Garcia testified similarly, explaining that the staff discarded and replaced approximately a dozen carafes each year. Garcia Dep. at 14-16. The evidence shows that certain procedures were in place that could have put hotel staff on notice of possible broken or damaged carafes. Hotel staff members were responsible for inspecting the glass carafes in each room for damage and replacing broken carafes when necessary. Id. at 18. The staff replaced, on average, "one a month, maybe two." Id. Plaintiff also points to a similar injury involving a coffee carafe suffered by a Marriott hotel guest in northern Virginia, as well as a trade publication advocating hotels to start using one cup coffee-makers, as evidence that defendant had constructive notice. Pl. Br. 12, May 5, 2011; Aff. of Richard N. Shapiro.
Plaintiff argues, alternatively, that summary judgment is not appropriate because the doctrine of res ipsa loquitur applies to plaintiffs claim. Defendant argues plaintiff is foreclosed from bringing forth this claim because it was not pleaded specifically in plaintiff's amended complaint. Under Arizona law, res ipsa loquitur is "a theory of circumstantial evidence under which the jury may reasonably find negligence and causation from the facts of the accident and the defendant's relation to the accident." Jackson v. H.H. Robertson Co., 118 Ariz. 29, 31, 574 P.2d 822, 824 (1978). The doctrine requires the court to ask "whether a reasonable man could reach the conclusion from the evidence offered that it was more likely than not the injury involved was the result of negligence on the part of the defendant." Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 354 873 P.2d 688 (Ct. App. 1994) (quoting Fowler v. Seaton, 61 Cal.2d 681, 394 P.2d 697, 700 (1964). Arizona requires the plaintiff to establish four elements in res ipsa loquitur cases: (1) the accident was of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the accident was caused by an agency or instrumentality within the exclusive control of the defendant; (3) it was not due to any voluntary action on the part of the plaintiff, and (4) plaintiff is not in a position to show the particular circumstances which caused the accident. Jackson, 118 Ariz. at 31-32. Because res ipsa loquitor is not a separate cause of action, but rather an alternative theory of negligence, plaintiff has satisfied the pleading requirements in Federal Rule of Civil Procedure 8. Plaintiff is not barred from proving Columbia Sussex was negligent under a theory of res ipsa loquitor.
Drawing all inferences in favor of the non-moving party, summary judgment is inappropriate. The testimony of Bhatti and Garcia, hotel trade publications discussing safer alternatives to glass carafes, along with the evidence of a similar injury in the Virginia Marriott hotel, if admissible, could be enough evidence for a rational jury to conclude that defendants are liable under a theory of premise liability. While plaintiff's evidence is certainly not overwhelming, a material issue of fact does exist with regard to whether or not defendants had constructive notice of a dangerous condition involving the use of the glass coffee carafes, a matter appropriate for a jury to decide.
Plaintiff points to one article discussing a hotel industry trend of replacing glass carafes with safer alternatives, such as a model called the One-Cup Coffeemaker. In the article, Tom Trent, of Sunbeam Hospitality, explains the benefits of the One-Cup model: "You stay away from breakage and replacement of the glass carafe and lessen liability [from injuries as a result of the carafe breaking]." See One-Cup Coffeemakers Gaining Wider Acceptance in Lodging Industry: Upscale, Full-Service And Gaming Hotels Lead Latest In-Room Beverage Trend, HOTEL BUSINESS, August 2006; Koshetz Dec, Ex. 4.
D. Strict Liability of Columbia Sussex and Marriott
Defendants Columbia Sussex and Marriott argue that plaintiff is not entitled to relief under a theory of strict liability because he failed to assert the claim in his amended complaint. Federal Rule of Civil Procedure 8(a)(2) requires the plaintiff to make a short and plain statement of his claims in addition to the relief sought. "While 'specific facts are not necessary,' the statement must 'give the defendant fair notice of what the claim is and the grounds upon which it rests.'" DiPetto v. U.S. Postal Service, 383 F.App'x 102, 103 (2d Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). Plaintiff's amended complaint sets forth one cause of action in negligence against Columbia Sussex and Marriott, a second cause of action in negligence against Sunbeam, a third cause of action for breach of warranty against Sunbeam, a fourth cause of action in strict products liability against Sunbeam, and a fifth cause of action for lack of informed consent against all defendants. Because plaintiff did not specifically plead a cause of action in strict liability against Columbia Sussex and Marriott in his amended complaint, he cannot bring forth such a distinct legal claim at this stage.
In plaintiff's reply brief, he asserts that Columbia Sussex and Marriott are strictly liable to plaintiff even though "the Amended Complaint does not plead a discrete cause of action for strict liability." Pl. Br. at 4, n.3, May 5, 2011. Plaintiff contends that the lack of a specific statement of the claim for strict liability is irrelevant because "all of the factual elements of strict liability are amply pleaded." Id. This argument fails. While it is true that "in a design defect case, there is almost no difference between a prima facie case in negligence and one in strict liability," the amended complaint in this case sets forth one theory of negligence for Columbia Sussex and Marriott, and a separate and distinct theory of strict liability against Sunbeam alone. American Guarantee & Liability Insurance Co. v. Cirrus Design Corp., 2010 WL 5480775 at *3 (S.D.N.Y. Dec. 30, 2010) (quoting Searle v. Suburban Propane Div. of Quantum Chem. Corp., 700 N.Y.S.2d 588, 591 (3d Dep't 2000). Plaintiff's first cause of action in negligence against Columbia Sussex and Marriott is based on a theory of premises liability for "the carelessness, negligence, gross negligence, wantonness and recklessness of the Defendants . . . in the ownership, management, control and maintenance of said premises." Pl. Am. Compl. ¶ 40. On the other hand, plaintiff's cause of action in strict products liability against Sunbeam is based on a theory of design defect. Id. at ¶ 74. In his brief, plaintiff claims Columbia Sussex and Marriott are strictly liable as sellers or distributors of a defectively designed product, but this claim does not appear anywhere in plaintiff's amended complaint. Plaintiff has not made a short and plain statement giving Columbia Sussex and Marriott fair notice of a cause of action for strict liability and is therefore not entitled to now seek relief on the basis of such a claim.
PLAINTIFF'S PRODUCTS LIABILITY CLAIM AGAINST SUNBEAM
Defendant Sunbeam moves to exclude plaintiff's expert testimony and grant summary judgment. Federal Rule of Evidence 702 provides that "[i]f 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. . ." But even if "a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields." Nimley v. City of N.Y., 414 F.3d 381, 399 n. 13 (2d Cir. 2005) (citing United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir. 1990)). Although Rule 702 "embodies a liberal standard of admissibility for expert opinions," id. at 395, the Court must "ensure that 'any and all scientific testimony or evidence admitted is not only relevant, but reliable," id. at 396 (quoting Daubert v. Merrel Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed2d 469 (1993)). On a motion to exclude expert testimony and for summary judgment, "[a]n expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion." Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006) aff'd on other grounds, 522 U.S. 312, 128 S.Ct. 999, 169 L.Ed2s 892 (2008).
The Supreme Court articulated four factors relevant to determining the reliability of an expert's reasoning or 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; and (4) whether the theory or method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593-94. These factors are not an exclusive checklist. Id. at 593. The factors should be applied flexibly, according to the particular circumstances of the case at issue. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152.
A. Plaintiff's Expert Report and Testimony
Plaintiff's expert holds a masters degree in ceramic engineering and has been involved with the science and practice of glass technology for over 50 years. Pecoraro Rept. p. 2. He is the sole member of Pecoraro Consulting, LLC, a business he founded in 2003 that specializes in glass fracture analysis and forensic studies for glass related injuries. Id. Prior to starting his consulting business, Pecoraro worked for PPG Industries, Inc., for forty years in the Glass Technology Center as a Senior Research Engineer. Pecoraro Dep. 20:2-18. PPG Industries is a manufacturer of sheet and flat glass products. Id. Pecoraro was not involved in the design of glass products at PPG Industries. Id. at 21:19-22. While his experience with the glass coffee carafe at issue is limited, Pecoraro has sufficient experience in glass science and technology to qualify as an expert. The admissibility of Pecoraro's opinion thus depends on the reliability of the methodologies and testing he used in reaching his conclusions.
Sunbeam takes issue with Pecoraro's experience because Pecoraro was not involved in glass design at PPG Industries and has limited experience working with glass coffee carafes. Sunbeam's concerns in this regard, however, do not disqualify Pecoraro as an expert in the relevant field. Because Pecoraro has extensive experience in science and glass technology, as well as glass fracture analysis, he "possess[es] skill or knowledge greater than the average layman" concerning the glass product at issue in this case. Lappe, 857 F.Supp. at 227 (quoting Aloe Coal Co. v. Clark Equip Co., 816 F.2d 110, 114 (3d Cir. 1987).
In his report, Pecoraro opined that the negligent design of the carafe weakened the glass over time and eventually caused it to shatter when plaintiff attempted to remove the lid from inside the carafe. Specifically, Pecoraro opined that the design was defective because when the screw in the handle of the carafe was tightened during the manufacturing process, fissures form around the lip of the carafe, weakening the glass by up to seventy-five or eighty percent, and eventually causing the glass to fail. Pecoraro Rept. p 8 ¶¶2-3. Pecoraro also opined that the lid of the carafe was designed defectively because it is possible for an unattached lid to fall into the carafe. Id. Pecoraro added that alternative designs, such as a handle better fit to the shape of the carafe or a carafe shaped to match the handle, would have prevented the fissures from developing and weakening the strength of the glass. Id. p. 8.
To illustrate his defective design theory, Pecoraro and an assistant performed a multi-step test on an exemplar carafe, which they recorded on video. First, Pecoraro instructed his assistant to use a screw driver to loosen and tighten the handle screw on the carafe. Pecoraro's assistant unscrewed the handle screw to a point at which "stress in the glass dropped by 650 psi," then re-tightened the handle screw to a point at which the stress in the glass increased by 1400psi. Pecoraro Rept. at p. 6, ¶31; see also Video at 11:43-11:50. Based on this, Pecoraro estimated that "the increase of stress at the lip of the carafe would be 4 to 5 times higher." Pecoraro Rept. p. 6, ¶31. Following the loosening and retightening of the handle screw, Pecoraro's assistant used a magnifying lens to examine the carafe for cracks or fissures—he could not find any. Video at 11:11.
Next, under Pecoraro's instruction, Pecoraro's assistant, wearing protective gloves, cut the carafe with a glass cutter six times, creating a fracture in the carafe visible through a microscope. Id. at 11:56-12:18. After observing small microscopic vents in the glass, Pecoraro's assistant picked up the carafe and gripped it with his hand--the carafe did not break. Id. at 12:50. Pecoraro's assistant then placed one hand inside the carafe in an attempt to recreate plaintiff's alleged accident--the carafe still did not break. Id. at 13:19. Finally, Pecoraro's assistant, still wearing protective gloves, twisted on the glass rim of the carafe and the carafe handle for approximately thirty seconds, causing a piece of glass to crack along the lip. Video at 13:18-13:25. After this procedure, Pecoraro's assistant removed the broken piece of glass from the top edge of the carafe. Id. at 13:26.
B. Admissibility
Defendant Sunbeam argues plaintiff's expert should be precluded from testifying because his theory of design defect is unreliable under Daubert. In design defect cases, testing, although not an absolute perquisite for expert testimony to be admissible, "is usually critical to show that an expert 'adhere[d] to the same standards of intellectual rigor that are demanded in their professional work.'" Colon, 199 F.Supp.2d at 76 (quoting Cimmins v. Lyle Indus., 93 F.3d 362, 269 (7th Cir. 1996)). Courts have repeatedly rejected expert testimony where a proposed theory or alternative design was not properly tested. See, e.g., American & foreign Ins. Co. v. General Electric Co., 45 F.3d 135, 139 (6th Cir. 1995) (rejecting expert evidence where expert lacked protocol for tests and took no notes during testing); Brooks v. Outboard Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (expert evidence excluded where expert did not test theory in defective motor boat engine case); Oddi v. Ford Motor Co., 234 F.3d 136, 156-57 (3d Cir. 2000) (excluding expert evidence where engineer failed to design or test safer design for truck bumper); Peitzmeier v. Hennesy Indus., Inc., 97 F.3d 293 (8th Cir. 1996) (excluding expert evidence of alternative design where expert did not design or test any proposed devices he claimed were missing from defendant's machine). While not a requirement, "[t]he failure to test a theory of causation can justify a trial court's exclusion of the expert's testimony." Brooks, 234 F.3d at 91 (citing Daubert, 509 U.S. at 589).
The Court's analysis of expert opinion "is tempered by the liberal thrust of the Federal Rules of Evidence and the 'presumption of admissibility.'" Bunt, 962 F.Supp. at 317 (quoting Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995)); Boucer v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996). Even with this standard in mind, Pecoraro's opinion fails to meet the test for reliability set forth in Daubert.
After considering Pecoraro's theory and testing, it is clear that his testimony does not meet the reliability prong of the Daubert test. Pecoraro's theory of design defect is based on speculation, and is not supported by his testing. In the video of Pecoraro's test on the exemplar carafe, Pecoraro's assistant loosened and retightened screws into the handle of the carafe, more than doubling the amount of strain on the carafe. Pecoraro Dep. 70:7-71:10. No fissures were observed around the lip of the carafe. Even after doubling the stress of the glass, the glass did not shatter or break. Id. When that failed, Pecoraro told his assistant that if he "probably [sic] that with a wheel cutter, it would probably break." Video at 11:11. Pecoraro's assistant went along, stating "[l]et's try it," and cut the carafe six times using a glass cutter. Id. at 11:11-12:18. Pecoraro's assistant then observed microscopic vents in the glass through a magnifying lens. Id. at 12:18. Pecoraro's assistant declared that "if I tap that, that thing'd fall apart." He did more than tap the glass--he picked it up and gripped it in his hand--but nothing happened. Finally, after having doubled the strain on the glass and scored the glass six times, Pecoraro instructed his assistant to "put your glove on and put your hand inside, like [plaintiff] did, and see if it breaks." Id. at 13:17. Pecoraro's assistant placed his gloved hand into the carafe. Again, the carafe did not break. Pecoraro's assistant then gripped the rim of the carafe tightly and twisted on it for approximately 30 seconds, causing a small piece of glass to break along the lip. Id. at 13:37. No simulation of the alleged accident created a similar result. As Pecoraro admitted at the end of testing, "we didn't exactly duplicate what happened in this case..." Id. at 14:06.
At deposition, Pecoraro testified that he over-tightened the screw to "demonstrate how the screw is tightened or not tightened affects the stress in the top of the carafe." Pecoraro Dep. 77:7-13.
Pecoraro explains in the video that a wheel cutter is a glass cutter. Video at 11:53
In sum, plaintiff's expert's test demonstrated that squeezing the rim of the glass, over-tightening the handle screws, cutting the glass six times with a glass cutter, and then physically ripping a piece of glass off of the lip of the carafe, broke the carafe. This test amounts to little more than an experiment involving a glass carafe, a screw driver, a glass cutter, requiring physical strength. It does not prove the sequence of events plaintiff alleges in his complaint, and does not support Pecoraro's theory of causation he sets forth in his report. See Brooks, 234 F.3d at 92 ("The failure to test a theory of causation can justify a trial court's exclusion of the expert's testimony"). No other tests were conducted.
Pecoraro offers little else in support of his opinion. Pecoraro did not attempt to reconstruct the accident, and did not perform any other tests that would support his theory that the design of the glass carafe is inherently dangerous. He did not test or inspect any coffee carafes before the handles were applied to determine whether fissures were created by the application of the handle to the carafe. He did not attempt to simulate the weakness in the glass that he opines occurs over time due to the defective design of the carafe. He did not base his theory on publications or studies that fissures can occur during the manufacturing process. He did not consider or rule out alternate causes of the accident. He did not have available to him any other defective carafes or other similar recorded accidents or failures. He did not observe any fissures in any Sunbeam carafe. Instead, his theory of design defect is based on one test that fails to recreate the accident plaintiff alleges. He attempted to bolster his theory by arguing that it was unnecessary to recreate the accident because the exemplar used for his experiment had not been subject to the same amount of water as the carafe in the accident, and was therefore stronger. This is baseless speculation.
Pecoraro's methodology and evidence do not substantiate his conclusion that a design defect caused the carafe to weaken, fail, and cause injury to plaintiff. Riegel, 451 F.3d at 127. Here, "there is simply too great an analytical gap between [the expert's] unreliable methodology and untested theories and the conclusions he reaches in his report." Kass, 2004 WL 2475606 at *10 (citing Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2006)). His opinion is speculative, unsupported, and unreliable. He is therefore precluded from testifying under Federal Rule of Evidence 704.
In light of this exclusion, there is no other evidence, or material issue of fact for a jury to decide, with regard to plaintiff's claim of strict products liability against defendant Sunbeam for a design defect. Plaintiff offers no evidence of inherent defects noted in other manufactured carafes or reviews of similar accidents. Plaintiff offers no alternative proof in support of his design defect theory, or any evidence that Sunbeam was otherwise negligent. Accordingly, summary judgment is granted in favor of defendant Sunbeam.
CONCLUSION
Columbia Sussex's motion for summary judgment is DENIED. Marriott's motion for summary judgment is GRANTED. Sunbeam's motion to exclude plaintiff's expert witness and for summary judgment is GRANTED. Dated: January 24, 2012
New York, New York
SO ORDERED
/s/_________
GEORGE B. DANIELS
United States District Judge