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July 16, 1997

CHRISTEL TRUMPS, Plaintiff, against TOASTMASTER, INC., Defendant.

The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 In this diversity action to recover for personal injuries, the Court is asked to consider whether the opinion of plaintiff's expert on liability passes muster under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) ("Daubert "), and if it does not, whether defendant is entitled to summary judgment under Rule 56, Fed. R. Civ. P., dismissing the complaint.


 According to the allegations of the complaint, the affidavits submitted on this motion, and the record developed during discovery, on April 15, 1993 plaintiff Christel Trumps was employed as a kitchen helper at Harry's Bar and Mindy's Restaurant, facilities maintained at the New York Helmsley Hotel, at 212 East 42nd Street, in Manhattan.

 During that day, a time came when Trumps, working in the kitchen, received an order from a waiter to cook a chicken breast sandwich. Trumps sought to execute that order by using an electric grill manufactured by defendant Toastmaster, Inc. Trumps says in her affidavit at P 6 that when she received the chicken breast sandwich order, there was bacon cooking on the grill. Her affidavit continues: "I put the chicken on the grill, and I felt a sharp tingling or shock in my right hand and this continued up my right arm to my right shoulder and face. I was propelled backward and I fell off my feet." Id.

 At her deposition, Trumps testified that she was not touching the grill when the incident occurred. She testified at Tr. 95:

 "[A] When I put the chicken on it went like I guess right to the chicken and me, and I said shit and I flew back and I remember I jumped back. The light came out here.

 Q. So you are saying that no part of your hand touched the grill?

 A. I had the chicken in my hand.

 A. Right."

 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 ...

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