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December 30, 1999


The opinion of the court was delivered by: Pohorelsky, United States Magistrate Judge.


The defendants in this products liability case move for summary judgment seeking dismissal of all the plaintiffs' claims. The motion attacks the testimony of the plaintiffs' expert Samuel Sero, upon whom the plaintiffs rely to prove that the defendant-manufacturers' ignition switch caused the plaintiff-motorist's burn injuries. The defendants seek summary judgment on the ground that the expert's testimony must be excluded because it falls short of the standard of admissibility embodied in Rule 702 of the Federal Rules of Evidence, and that without it, plaintiffs are unable, as a matter of law, to establish causation. The case is before the court on consent of the parties. See 28 U.S.C. § 636(c)(1). For the reasons stated below, the court concludes that the testimony of the plaintiffs' expert must be excluded, and that the defendants are therefore entitled to summary judgment.


This case arises from a 1994 motor vehicle accident which occurred on Hoffman Lane in Hauppauge, New York when a 1988 Mercury Cougar operated by the plaintiff Frank Donnelly collided with another vehicle. The accident occurred when Donnelly drove out of his lane and crossed the double yellow line into the oncoming traffic lane, resulting in a headon collision with the vehicle operated by non-party Matthew Kiladitis. Shortly after the accident, Donnelly passed out and remained unconscious for approximately eight days. Eyewitnesses on the scene observed flames from the engine area of Donnelly's vehicle, and smoke inside the passenger compartment underneath the dashboard area.*fn1 Later, Donnelly testified that he felt heat near his knees just before he passed out. As a result of the fire, Donnelly sustained burns on his legs and stomach.

After the accident, the Donnelly vehicle was stored by the plaintiffs at an auto repair shop for approximately three months. The vehicle was then destroyed. In July of 1996, approximately two years later, Ford issued a recall notice for various models of the Mercury Cougar, including the 1988 model driven by Frank Donnelly at the time of the accident. The recall notice stated, among other things, that "[o]n a small number of the affected vehicles, a short circuit could develop in the ignition switch that could lead to overheating, smoke, and possibly fire in the steering column area of your vehicle."

In 1997, Marie Donnelly, as parent and natural guardian of Frank Donnelly, commenced the present suit against Ford Motor Company, and United Technologies Corporation as manufacturer of the ignition switch component parts of some Mercury Cougars, claiming breach of warranty, negligence, strict liability, and loss of services. After the close of discovery, including the exchange of expert disclosures under Rule 26(a)(2) of the Federal Rules of Civil Procedure, the defendants moved for summary judgment. The initial disclosures of the plaintiffs' engineering expert included a two-page report, to which was attached certain documents issued by Ford relating to its recall of the allegedly defective ignition switch. See Engineering Report Re: Ford Ignition Switch Fires (Cestari Aff. Ex. 13). In response to the defendants' motion, the plaintiffs supplemented that report by filing the Affidavit & Supplemental Report of Samuel J. Sero, P.E.*fn2


A. Summary Judgment Standard

Summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines 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. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co., 22 F.3d 414, 418 (2d Cir. 1994). The party opposing summary judgment may not rest on its pleadings but must present "significant probative evidence" demonstrating that a genuine dispute of material fact exists and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). No triable issue of fact is present if the evidence in the record is insufficient to support a verdict for the party opposing a motion for summary judgment. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. To demonstrate a genuine issue of material fact and therefore survive summary judgment, a plaintiff must present sufficient evidence for a jury to reasonably find in favor of the plaintiff. Id. at 252, 106 S.Ct. 2505. Presenting a mere "scintilla of evidence" is insufficient. Id. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994); see Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988).

In determining a summary judgment motion, the court may first need to determine the admissibility of expert testimony. See Raskin v. Wyatt Company, 125 F.3d 55, 66 (2d Cir. 1997). Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits submitted in support of and in opposition to a summary judgment motion "set forth such facts as would be admissible in evidence." Therefore, "it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment," and "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin, 125 F.3d at 66. Moreover, in determining the admission and qualification of experts, the district court has broad discretion. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997); Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (per curiam). Federal Rule 104(a) provides that the proponent must establish admissibility of the expert testimony by a preponderance of the proof. See Fed.R.Evid. 104. A trial court's decision to admit or exclude expert testimony is reviewed for abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

B. Standard for Admissibility under Federal Rule of Evidence

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides,

  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.

The Supreme Court has established that under Rule 702 the trial judge is assigned the task of "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see FDIC v. Suna Assocs., Inc., 80 F.3d 681, 686 (2d Cir. 1996). Rule 702 applies not only to scientific testimony but also to expert testimony based on technical ...

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