Q. So the chicken was touching the grill, not your hand?
Trumps further testified that no other part of her body was touching the grill, unless she was standing on its extension cords, which she did not recall doing. Tr. 95-96.
The medical records submitted on this motion indicate that Trumps was treated at the emergency room of the New York University Medical Center from April 16 to 19, 1993. Dr. Jesse Blumenthal, a New York State Workers' Compensation Board physician, examined Trumps on April 16. His examination revealed an "electrical burn of right 3rd finger, edema of right forearm," with attendant "tenderness and swelling." The Medical Center's discharge diagnosis on April 19 was "effect, adverse electric current (shock)." According to a report dated February 8, 1996 by Dr. Irving Friedman, a neurologist who examined Trumps for the first time on January 16, 1996, Trumps received follow-up treatment from Dr. Howard Richman, who diagnosed "electric current injury, right upper extremity, neck and face . . ."; and from Dr. Francine DiGiovanni, a psychiatrist, who diagnosed "post-traumatic stress disorder, major depressive episode, current and chronic . . ." Dr. Friedman states that Trumps "has attended the Manhattan Center for Pain Management for persistent pain in her right hand, elbow and shoulder." Dr. Friedman found "marked tenderness and swelling of the entire right extremity and forearm," with grip strength "decidedly diminished on the right," and continuing pain in the right shoulder, so that "she is totally incapacitated from using her right upper extremity to the extent that she cannot even dress herself without assistance." Dr. Friedman states his opinion "with a reasonable degree of medical certainty that the accident of April 15, 1993 was the competent producing cause of Mrs. Trumps' above noted injuries and current clinical picture."
Jose Polanco, the chief engineer for the Helmsley Hotel, testified that he examined the grill twice after the accident, probably the day after the accident and subsequently, when an OSHA inspector came to investigate. Polanco tested the griddle in his office and had no problems with it. The OSHA inspector, after having interviewed hotel employees (apparently not including Trumps), ascribed the accident to "electrocution." Polanco testified that thereafter the grill disappeared; "most likely somebody took it home." Tr. 21-22.
Trumps commenced this action in mid-1994 in the New York State Supreme Court, New York County. She named as defendants various entities associated with the hotel, and Toastmaster. Toastmaster removed the case to this Court on the ground of diversity of citizenship, contending that the other defendants, whose presence would have destroyed complete diversity, had no conceivable liability, a view with which the Court ultimately agreed, dismissing those other defendants from the action and thereby preserving diversity jurisdiction, since Trumps is a citizen of New York and Toastmaster is a Missouri corporation.
The complaint pleads three theories of recovery against Toastmaster: negligence, breach of the implied warranty of the griddle's merchantability, and strict liability based upon the allegation that the griddle was defective.
The plaintiff's expert witness on the issue is Michael Kaufmann, a mechanical engineer, who has given opinions on the cause of the accident. Kaufmann has been deposed by counsel for Toastmaster and has submitted an affidavit with exhibits on this motion.
Toastmaster now moves in limine to preclude Kaufmann from testifying at the trial. The gravamen of Toastmaster's motion is that the Court, exercising its "gatekeeper" function under Daubert, should rule Kaufmann's opinions inadmissible; and then, in the resulting absence of proof on liability, grant Toastmaster summary judgment dismissing Trumps' complaint.
Rule 702, Fed. R. Evid., allows opinion evidence by a qualified expert to be adduced at trial "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . ." As the Second Circuit observed in F.D.I.C. v. Suna Associates, Inc., 80 F.3d 681, 686 (2d Cir. 1996), "it is well established that expert testimony must be based upon reliable theories or principles" to be admissible in evidence (citation and internal quotation marks omitted). Prior to the Supreme Court's decision in Daubert, courts applied the "general acceptance" test articulated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). Daubert held that the Federal Rules of Evidence, with its "liberal thrust," superseded the "rigid general acceptance requirement" of Frye. 509 U.S. at 588. Nonetheless, Daubert cautions that "the adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge' connotes more than subjective belief or unsupported speculation." Id. at 589-90. The Second Circuit has said that "the Federal Rules of Evidence, although concededly more liberal than the Frye test, still require a determination that the proffered scientific evidence is both relevant and reliable." United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995), cert. denied, 517 U.S. 1115, 134 L. Ed. 2d 491, 116 S. Ct. 1343 (1996). Most recently, the Second Circuit held in Stagl v. Delta Air Lines, Inc., 52 F.3d 463, 1997 WL 368633, *5 (2d Cir. 1997) that "in admitting expert testimony, a trial court must determine whether the expert's reasoning and methodology can appropriately be applied to the facts of the case before it" (citing Daubert).
Daubert places upon trial judges "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 597. To assist trial judges in navigating on these post-Frye, newly uncharted seas, the Daubert Court articulated a non-exclusive list of factors that trial judges should consider in deciding whether or not to admit expert opinion evidence. Those factors include: "(1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; and (3) the known or potential rate of error associated with a particular scientific technique." Suna Associates, 80 F.3d at 687 (citing Daubert ; internal quotation marks omitted). While Daubert continues to regard whether the theory is generally accepted as a relevant factor, the Court stressed that "a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of the fact will be whether it can be (and has been) tested." 509 U.S. at 593-94. That is because, the Court explained, "scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Id. at 593.
In the light of this authority, I will consider the proffered opinions of plaintiff's expert witness Kaufmann and whether they satisfy the Daubert criteria.
The Proffered Opinions
While as noted the griddle involved in the incident was not preserved by the hotel staff, Kaufmann examined "an exemplar griddle" furnished to him for that purpose at the offices of Toastmaster's New York counsel. Kaufmann Report dated May 7, 1996 at 7. The griddle was equipped with an electric temperature control unit at one of its ends, from which pin terminals led to the griddle's electric heating element. Kaufmann's final conclusions, as set forth in his affidavit,
are as follows:
"This accident occurred because the metal surfaces of the griddle were not grounded, and the design and instructions of Toastmaster allow the use of cooking oils or grease on this griddle without leveling the griddle. This allowed grease or cooking oil to run over the end of the griddle and onto the exposed electrical contacts between the heat-control and the griddle heating element creating an electrical path from the electrical contacts to the metal cooking surface of the griddle."
May 7, 1996 Report at 12. The accident and injury to plaintiff indicate, in Kaufmann's opinion,
"that the bacon grease from the bacon, which she was cooking on this griddle, had entered the area of the probe and its electrical connections, causing an electrical short to the metal frame of this griddle. When she placed the chicken on the griddle her fingers made contact with the metal surface of the griddle. This allowed a current to flow from the electrical connection of the heat control to the frame of the griddle, to her fingers and it started up the nerves and blood vessels of her fingers into her arm."