testified that testing was not required to ascertain the reliability of his opinion that a warning was necessary on the Hobart meat grinder to reduce the risk of injury of its users to an acceptable level. Where a witnesses' opinion is not the product of scientific methodology or systematic analysis, but rather a conclusion based on years of accumulated learning and insight, Cummins does not apply and reliability should be assessed without resort to the Daubert factors.
This holding is consistent with several recent appellate court opinions in this field. Where courts have found an expert opinion to be based on personal experience alone, Daubert has not been applied. See Compton v. Subaru of America, Inc., 82 F.3d 1513, 1518 (10th Cir. 1996) ("application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training") (citation omitted). Where expert opinion has been presented as the product of scientific method or analytic thought, courts have applied Daubert. See Peitzmeyer v. Hennesey Industries Inc., 97 F.3d 292, 297 (8th Cir. Oct. 4, 1996) (applying Daubert factors to expert alternative design testimony based on "general engineering principles"); Braun v. Lorillard Inc. et al., 84 F.3d 230, 233 (7th Cir. June 14, 1996) (applying Daubert to expert testimony regarding methods of testing for the presence of asbestos in human tissues).
D. Admissibility of Robinson's Testimony
To be admitted under the traditional (non-Daubert) analysis, Robinson's testimony must have assisted the trier of fact "to understand the evidence or to determine a fact in issue". Fed. R. Evid. 702.
Rule 702's "helpfulness" standard requires a valid link between the expert's testimony and the jury's factual inquiry as a precondition to admissibility. See Daubert, 509 U.S. at 591. Earlier in the course of these proceedings, I found that "there is no question that Robinson's testimony assisted the jury in determining facts pertinent to the case." Liriano v. Hobart et al., 1996 U.S. Dist. LEXIS 7727, No. 94 Civ. 5279, 1996 W.L. 304337, at *4 (S.D.N.Y. June 6, 1996). There was a close fit between Robinson's testimony and the material facts in dispute. Defendants' most recent reiteration of their earlier arguments have not changed my views. Based on the foregoing analysis of the Federal Rules of Evidence as interpreted by the cases cited above, I find that Robinson's testimony was properly admitted at trial.
VI. Plaintiff's Motion to Amend Verdict
On September 27, plaintiff moved to amend the retrial verdict to include his hospital bill of $ 21,252.34. Plaintiff argues that the hospital bill was admitted into evidence during the retrial, and correctly notes that the retrial jury found that Liriano suffered no past medical expenses as a result of defendants' conduct.
Because this is a diversity action, the substantive law of New York is applied to determine the question of whether the court may properly grant plaintiff's motion to amend the retrial verdict. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); Imbrogno v. Chamberlin, 89 F.3d 87, 89 (2d Cir. 1996). Plaintiff relies on Woodson v. New York City Housing Authority, 10 N.Y.2d 30, 32, 217 N.Y.S.2d 31, 176 N.E.2d 57 (1961), which held the trial court properly directed judgment for plaintiff where plaintiff's fully corroborated testimony was uncontradicted and did not give rise to conflicting inferences and where defendant offered no evidence. Woodson, however, does not directly address the issue of when a court may properly amend a jury's verdict once it has been rendered.
Two New York cases cast doubt on a court's authority to amend the verdict as plaintiff requests. Romano v. City of Syracuse, 91 A.D.2d 1197, 459 N.Y.S.2d 186, 187 (4th Dep't 1983), involved a personal injury action in which the jury found, inter alia, that plaintiff had suffered no lost earnings but was entitled to reimbursement for his three-week hospital confinement. The trial court found those answers inconsistent based on the evidence in the record and directed that the verdict be increased to compensate plaintiff for his lost salary. The Appellate Division reversed, finding that the trial court could not amend the verdict without first giving the jury an opportunity to correct its error. A retrial was ordered solely on the issue of the damages sustained by plaintiff.
This same question was addressed more recently in Fischl v. Carbone, 199 A.D.2d 463, 606 N.Y.S.2d 53, 55 (2d Dep't 1993). Finding the jury's verdict contrary to the weight of evidence, the trial court reduced the amount awarded for past pain and suffering and increased the amount awarded for future pain and suffering. The Appellate Division found that the trial court lacked the power to unilaterally change the jury's verdict and noted that the proper procedure for the trial court to follow was:
If it found that the verdict did not deviate materially from what would be [reasonable] compensation, to deny the motion, or, if it did deviate materially, to direct a new trial unless the parties stipulated to an appropriate additur or remittitur, or both.
These three cases provide adequate guidance to resolve plaintiff's motion. The rules of Romano and Fischl indicate that a trial court may not unilaterally amend a jury's findings on the question of damages, even if that verdict deviates materially from what would be reasonable compensation. Rather, the proper procedure is to direct a new trial. However, Woodson indicates that a trial court may direct a verdict where plaintiff's evidence is uncontroverted, does not give rise to conflicting inferences and where defendant presents no contradicting evidence or argument.
Because the retrial jury's findings as to Liriano's past medical expenses materially deviated from what would be reasonable compensation, Romano and Fischl indicate that a new trial on that specific issue is required. However, because the plaintiff's evidence regarding the hospital bill meets the Woodson standards for directed judgment, no such new trial need actually be held.
One final matter remains. Defendant Super asserts that although the hospital bill was properly admitted at the first trial, it may not be deemed admitted at the second trial. On September 4, 1996, I ruled that evidence presented at the first trial must be used during the retrial to be deemed admitted. See Trial Transcript at 69. However, Liriano's medical bill was "used" within the meaning of the September 4 ruling during the retrial. Specifically, it was presented with other hospital records to Dr. Kristjan T. Ragnarsson, plaintiff's treating physician, on September 5, 1996. It is evident from Dr. Ragnarsson's testimony that he reviewed the hospital records. Trial Transcript at 189, 204 and 208. Thus, the bill was admitted for the jury's consideration.
For the foregoing reasons, defendants' motions for judgment as a matter of law are denied. Plaintiff's motion to amend the retrial verdict to include a past medical expenses award of $ 21,252.32 is granted, and it is hereby ordered that the judgment entered should reflect that addition.
Shira A. Scheindlin
Dated: New York, New York
November 13, 1996