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COLON v. BIC USA

December 19, 2001

JOSUE COLON, AN INFANT UNDER THE AGE OF 14 YEARS BY HIS MOTHER AND NATURAL GUARDIAN, IRIS HOLINA, AND IRIS HOLINA, INDIVIDUALLY, PLAINTIFFS,
v.
BIC USA, INC., DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge.

                  OPINION AND ORDER

This Court denied BIC's motion to dismiss on preemption grounds, holding that plaintiffs' claims were not expressly or impliedly preempted by the Consumer Product Safety Act, 15 U.S.C. § 2051-2084. See Colon v. BIC, 136 F. Supp.2d 196 (S.D.N Y 2000) ("Colon I"). Trial is set to begin on January 7, 2002. BIC now moves for summary judgment on the grounds that (1) the lighter that injured Josue was substantially modified after it left BIC's control; (2) there can be no duty to warn when additional warnings would be superfluous under the circumstances; and (3) no genuine issue of material fact exists as to whether Josue removed the lighter's safety feature. Defendant also moves to excluder' the testimony of plaintiffs' expert, John Nelson, on the ground that "it fails the Daubert, Kumho Tire and Joiner criteria for admissibility of expert testimony.

Further, defendant moves to dismiss Iris Molina's claims for emotional and psychiatric injuries, as well as for pecuniary support, because she was not within the "zone of danger" and because an award of pecuniary support for the mother would be duplicative of any lost earnings award to Josue. Defendant also moves for separate trials on liability and damages. Finally, defendant brings the following motions in limine: (1) to limit the number of photographs and slides of Josue's injuries; (2) to exclude the videotape of Josue in the hospital; (3) to exclude prior claims and complaints against BIC; and (4) to exclude expert testimony regarding plaintiffs' claim that the lighter's bright color was a design defect.

Plaintiffs bring the following motions in limine: (1) to exclude the testimony of defendant's expert, Lawrence Broutman, because it would be cumulative; (2) to exclude the testimony of defendant's expert, Eric Peterson, because it would be cumulative, irrelevant and amount to improper legal testimony. Plaintiffs move to exclude all evidence of Josue's prior conduct and activity as irrelevant and improper character evidence.

Defendant's motions (1) to dismiss Iris Molina's claims, (2) to bifurcate the trial, and (3) to exclude all reference to color as a design defect are granted. Defendant's motions to limit the number of visual representations of Josue's injuries, and to exclude the hospital videotape, are granted with respect to the liability phase of trial, but denied with respect to the damages phase. The motion to exclude evidence of Josue's prior conduct or activity is granted. Plaintiffs' motion to exclude the testimony of Eric Peterson is granted, but their motion to exclude Lawrence Broutman is denied.

For the reasons set forth below, defendant's motion for summary judgment is granted as to plaintiffs' design defect claims including failure to warn, but denied as to their manufacturing defect claim. Defendant's motion to exclude John Nelson's testimony on alternative designs is granted, but Nelson may testify as both a lay and expert witness regarding causation in conjunction with plaintiffs' claim for manufacturing defect.

I. FACTUAL BACKGROUND

A. The Accident

On January 2, 1998, six-year-old Josue sustained burns to his torso and neck after igniting his shirt with a BIC lighter. See Plaintiff's Verified Amended Complaint ("Compl.") ¶ 11. The incident occurred while Josue was staying with his aunt, Brunhilda Rivera, in Worcester, Massachusetts. See Defendant's Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 1; Plaintiffs' Response to Defendant's Rule 56.1 Statement ("Pl. 56.1") ¶ 1.

Ms. Rivera purchased a red BIC J-15 lighter three days prior to the accident from Santiago's Market in Worcester, Massachusetts. See Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2. She describes the lighter that she bought as having a red body, a black locker, and a white warning label that read "Flammable" or "Inflammable." See 2/26/01 Deposition of Brunhilda Rivera, Great-Aunt of Josue Colon ("Rivera Dep.") at 16, 55-56. She did not have any other lighters in the house at the time of the accident. See Pl. 56.1 ¶ 2; Rivera Dep. at 37-38. Plaintiffs contend that the lighter that the police retrieved several hours after the accident ("subject lighter" or "lighter") is the same lighter that Ms. Rivera purchased three days earlier and that Josue used to injure himself.*fn1 Pl. 56.1 ¶ 3.

The subject lighter no longer had a child-resistant safety latch (or "locker" or "child guard" or "safety feature") when the police retrieved it. See Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13; Photograph of Subject Lighter Placed on 01/02/98 Note Written by Sgt. Mark Richardson ("01/02/98 Police Photograph") (identifying subject lighter and transcribing Ms. Rivera's address), Ex. E to 10/15/01 Declaration of John Nelson, Plaintiffs' Expert ("Nelson Dec."). Both Ms. Rivera and Iris Molina, who was present in the store where Ms. Rivera bought the lighter, recall that the subject lighter was purchased with a child-resistant safety latch attached to it. See Rivera Dep. at 16, 57; 1/4/01 Report of John Nelson ("Nelson Rpt.") at 3 (referring to his 12/27/00 interview of Iris Molina). In fact, Ms. Rivera testified that she made sure that she purchased a lighter that was child-resistant. See Rivera Dep. at 57. Ms. Rivera testified that she did not let anyone borrow her lighter in the three days between its purchase and the accident, that she did not remove the subject lighter's latch or any part of the lighter prior to the accident, and that she has never removed the "locker" or any part of any lighter in the past. See id. at 64, 62, 63-64; Pl. 56.1 ¶ 9. She swears that the child-resistant locker was intact when she last used the lighter at 1:30 p.m. and placed it on the shelf in the living room. See Rivera Dep. at 63.

After calling 911, Ms. Rivera asked the younger brother whether they had used matches to start the fire. See id. at 47. According to Ms. Rivera, Abdel responded, "No. He had the lighter." Id. (referring to Josue). Ms. Rivera also testified that the younger brother told her that Josue had been "playing with a black thing . . . moving [it], trying to — pulling that black thing and trying to light it up." Id. at 48. Ms. Rivera found the subject lighter on the floor of the bathroom or the kitchen, and tossed it onto the dining room table. See id. at 42, 48 (not recalling whether it was the bathroom or kitchen).

Josue testified that the lighter was easy to operate because it did not have a "little black thing" attached to it. See 3/28/01 Deposition of Josue Colon ("Josue Dep.") at 35 (referring to the black locker). Josue explained, "it turned on by itself when I switched it, but it didn't have the thing on it," later clarifying "the little black thing. I don't know." Id. at 34-35. He did not specify whether he meant that the black locker, or safety feature, was missing at the time he used it or at the time he or his brother took it from the shelf. Josue clarified that he simply pressed the metal part of the lighter with his thumb to ignite it. See id. at 36 ("[Q:] What part of the lighter did you touch? [A:] The metal part. When I touched, it went on."). Josue also denied that he had altered the lighter in any way. See id. at 35 ("[Q:] From the time you reached for the lighter on the shelf to the time you got to the bathroom, did you do anything to the lighter? [A:] No."). But see infra Part III.D.3 (holding that there is a genuine issue of fact as to whether Josue removed the safety feature himself, despite Josue's testimony to the contrary).*fn2

The police were the first strangers to arrive on the scene after Ms. Rivera dialed 911. See Rivera Dep. at 49 (testifying that three or four officers arrived "a few minutes" after she called 911 and that they arrived before the ambulance). The ambulance arrived shortly thereafter. See id. at 49. The police found the subject lighter on the kitchen table (also referred to as the dining room table by Ms. Rivera) and impounded it. See 01/03/98 Worcester Police Department Report by Sgt. Mark Richardson ("A pink colored butane lighter was later observed on the kitchen table and is believed to be the lighter used by Joshua [sic]. It was taken into our possession, along with most of the remains of the charred shirt."); Rivera Dep. at 55 ("[The police officer] took it [the subject lighter] from the table.").

B. BIC's J-15 Model Lighter

The subject lighter is a BIC J-15 model lighter manufactured with a "Child Guard" safety latch. See Rule 26 Report of Paul Labrum, BIC's Director of Corporate Quality ("Labrum Rpt.") at 2 ("The lighter is a J-15 model fixed-flame Child Guard lighter manufactured in Spain during week 28, 1995."). In order to operate the lighter, the user must push the Child Guard latch "in and up" to access the valve actuator. See 7/13/94 Letter from BIC to Michael T. Bogumill, Compliance Officer at the Consumer Product Safety Commission ("CPSC") ("7/13/94 Safety Report"), Ex. AA to 8/14/01 Affidavit of Anthony Tagliagambe ("Tagliagambe Aff."), Defendant's Attorney, at 1 (describing operation of the J-15 lighter). The latch otherwise obstructs the downward movement of the actuator. See id. With the latch in the "up" position, the user must depress the actuator while rotating the spark wheel with her thumb. See id. The valve actuator delivers isobutane gas up to where the wheel generates sparks to ignite the fuel and create a flame. See id. Once the latch is released, the Child Guard returns to its closed or latched position. See id.

The Child Guard was designed to make it very difficult for young children, who lack fine motor skills and the requisite strength, to operate the lighter. See Rule 26 Report of Paul Adams, BIC's Area Manager for Lighter Development ("Adams Rpt.") at 5. For children ultimately able to operate the lighter, the purpose of the Child Guard was to delay operation to allow for the possibility that adult supervision would resume. See id.

Plaintiffs do not dispute that the lighter, manufactured according to specifications, meets the applicable CPSC standard for child-safety. See id. at 3; Labrum Rpt. at 3. The standard requires that at least 85% of children under age five must be unable to override the safety feature. See 16 C.F.R. § 1210. Using surrogate lighters which beep rather than ignite, defendant has conducted tests to determine how many children are able to override the feature. See Adams Rpt. at 3. Defendant's tests of the J-15 model lighter have shown that 95% of children age five and under are unable to override the Child Guard safety feature. See 7/13/94 Letter from BIC to Michael T. Bogumill, Compliance Officer at CPSC ("7/13/94 Safety Report"), Ex. AA to Tagliagambe Aff., at 2 (reporting test results of children using model J-15 surrogate lighter). Over the course of defendant's testing of its enhanced child-resistant lighters, including the J-15 lighter, not one of the 5, 000 children under age 5 has been able to completely disable the Child Guard by removing it. See Adams Rpt. at 4; 8/29/01 Affidavit of Paul Adams ("Adams Aff.") ¶ 11. Plaintiffs have conducted no tests to show how many children are able to override the feature or whether any children are actually able to remove it. See 7/11/01 Deposition of John Nelson, Plaintiffs' Expert ("Nelson Dep.") at 238.*fn3

Plaintiffs advocate a failsafe lighter design which renders the lighter inoperable when the safety feature "fails" (is removed or broken). See 1/4/01 Nelson Rpt. at 8; Nelson Dec. ¶ 22; Plaintiffs' Memorandum in Opposition to BIC's Motion for Summary Judgment ("Pl. Opp'n.") at 14. Defendant knows of no lighter on the market which is rendered inoperable when the safety feature is removed. See Adams Rpt. at 4. Further, defendant claims that none of the failsafe mechanisms it has tested are technologically feasible. See id.

Defendant claims that every BIC lighter is produced with a peelable white label warning that reads either "Keep Away From Children" or "Keep Out of Reach of Children." Adams Rpt. at 3. But see Rivera Dep., at 55-56 (remembering a white sticker that read "Flammable" or "Inflammable"). Apparently, the subject lighter's label warning had been peeled off when the police retrieved it on the day of the accident. See 01/02/98 Police Photograph; Labrum Rpt. at 2 (observing that subject lighter was missing its warning label).

II. DEFENDANT'S DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY

Defendants move to exclude the testimony of plaintiffs' expert, John Nelson.

A. Legal Standard for Admissibility: Rule 702, Daubert

When deciding a motion for summary judgment, a federal district court may consider only admissible evidence. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993); Borgognone v. Trump Plaza, No. 98 Civ. 6139, 2000 WL 341135, at 2 (E.D.N.Y. Mar. 9, 2000) ("On a summary judgment motion, a district court properly considers only evidence that would be admissible at trial.") (quotation marks and citation omitted). Pursuant to Rule 104(a), the court must evaluate evidence for admissibility before it considers that evidence in ruling on a summary judgment motion. Fed. R. Evid. 104(a) (evaluation of preliminary questions); see also Borgognone, 2000 WL 341135, at 2; Donnelly v. Ford Motor Co., 80 F. Supp.2d 45, 47-48 (S.D.N.Y. 1999). If a proffer of expert testimony is excluded as inadmissible pursuant to Rule 702, the court must make the summary judgment determination on a record that does not include that evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997); Donnelly, 80 F. Supp.2d at 47. The standard for admissibility of evidence pursuant to Rule 702 is the same at the summary judgment stage as it is at trial. See General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997) ("On a motion for summary judgment, disputed issues of fact are resolved against the moving party . . . but the question of admissibility of expert testimony is not such an issue of fact.").*fn4

Federal Rule of Evidence 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.
Fed. R. Evid. 702. The Supreme Court has defined the role of the district court as that of a gatekeeper charged with the task of deciding whether an expert's scientific testimony satisfies Rule 702's general requirements of reliability and relevance. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Originally intended to screen out "junk science," Daubert has been extended to apply to both technical and other specialized expert evidence as well. See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (technical or other specialized knowledge); Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000). In December 2000, Rule 702 was amended to incorporate Daubert's formulation of the gatekeeping task: the district court must make certain that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702. The proponent of the evidence must establish admissibility under Rule 104(a) by a preponderance of the proof. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).*fn5

The trial judge's gatekeeping task under Rule 702 and Daubert is two-fold: she must determine whether the evidence "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597; United States v. Marji, 158 F.3d 60, 62 (2d Cir. 1998). To assist with the first task of assessing the reliability of expert testimony, Daubert provides the district court with four non-exclusive criteria to apply to the expert's reasoning or methodology: (1) whether the expert's concept is capable of being, and has been, tested; (2) whether it has been subjected to peer review; (3) what the known rate of error is; sand (4) whether the technique and theory is generally accepted by the scientific community to which it belongs. See Donnelly, 80 F. Supp. 2d at 47 (citing Daubert, 509 U.S. at 593-94). Although the focus of the overall inquiry must be on principles and methodology and not on conclusions, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Joiner, 522 U.S. at 146.

B. In Limine Daubert Hearing

Courts often hold pretrial evidentiary hearings pursuant to Rule 104(a) to determine whether expert scientific (or other specialized) testimony is reliable under Daubert, regardless of whether the parties have requested such a hearing. Here, the parties have not requested a Daubert hearing. Whether to hold a hearing rests within the discretion of this Court. See Michael H. Graham, 2 Handbook of Federal Evidence § 702.5 (5th ed. 2002) ("In light of the Supreme Court's emphasis on the broad discretion granted to trial courts in assessing the relevance and reliability of expert testimony, and in the absence of any authority mandating such a hearing, we conclude that trial courts are not compelled to conduct pretrial hearings in order to discharge the gatekeeping function."); Margaret Berger, "Supreme Court's Trilogy on Admissibility of Expert Testimony," Reference Manual on Scientific Evidence 29 (Fed. Judicial Center 2000) (stating that district courts have discretion). The party proferring testimony is not entitled to a Rule 104(a) hearing. See Oddi v. Ford Motor Co., 234 F.3d 143, 154-55 (3d Cir. 2000) (affirming summary judgment granted after excluding expert testimony without holding in limine Daubert hearing), cert. denied, 121 S.Ct. 1357 (2001); United States v. Alatorre, 222 F.3d 1098, 1104-06 (9th Cir. 2000) (distinguishing United States v. Velarde, 214 F.3d 1204, 1209-11 (10th Cir. 1999), where the district court failed to conduct any reliability determination before excluding evidence); United States v. Nichols, 169 F.3d 1255, 1262-63 (10th Cir. 2000); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998).

The Second Circuit has held that, in general, Rule 104(a) pretrial evidentiary hearings are "highly desirable" because they allow parties to present expert evidence and conduct cross-examination of the proposed expert. Borawick v. Shay, 68 F.3d 597, 608 (2d Cir. 1995) (nonetheless affirming exclusion of expert testimony despite district court's failure to hold pretrial hearing).*fn6 Moreover, failure to hold an in limine hearing, especially in the context of summary judgment, may be an abuse of discretion when the ruling on admissibility turns on factual issues. See, e.g., Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999); see also In re TMI Litig., 199 F.3d 158, 159 (3d Cir. 2000) (stating that in limine hearing is important where exclusion will result in summary judgment, and that magistrate judge abused discretion by excluding evidence without holding in limine hearing); Ref. Manual on Sci. Evid. at 29 ("The facts of the case and the consequences of losing the in limine motion will determine the extent of the opportunity the proponent of the expert must be given to present its case."). Not all circuits agree. See Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 248-49 (6th Cir. 2001) (holding that district court not required to hold hearing before excluding evidence pursuant to Daubert) (affirming summary judgment); see also Oddi, 234 F.3d at 151-54 (distinguishing Padillas where the record was so scant that the district court could not have evaluated how the expert arrived at his opinions).

Nothing in Daubert, or any other Supreme Court or Second Circuit case, mandates that the district court hold a Daubert hearing before ruling on the admissibility of expert testimony, even where such ruling is dispositive of a summary judgment motion. The crux of the parties' dispute over Nelson's testimony is whether, as a matter of law, an engineer's testimony in a design defect case requires the testing of a prototype or existing product to be reliable. See Padillas, 186 F.3d at 417 (hearing necessary where court is concerned with the "factual dimensions" of the proposed experts's evidence). Finally, the fact that the evidentiary record is well-developed in this case makes a Daubert hearing that much less necessary. See Oddi, 234 F.3d at 154 (rejecting plaintiff's argument that in limine Daubert hearing was required when court had reviewed well-developed record which included two depositions, a declaration and an expert report); see also Nelson, 243 F.3d at 249 (Daubert hearing not required, especially where record was extensive and Daubert issue was fully briefed by the parties).*fn7

C. Nelson's Proffered Expert Opinion

John Nelson, the plaintiffs' expert, proffers an expert opinion on two different alleged defects: (1) whether BIC's failure to use failsafe technology in conjunction with the J-15 lighter is unreasonably dangerous and whether there exists a feasible design alternative to the J-15 lighter's child safety feature that would make the product safer, and (2) whether the J-15 lighter's bright color and small size constitutes a defect and whether manufacturing lighters in a dull, matte color is itself a feasible design alternative that would make lighters less attractive to children and therefore safer. Nelson submits a declaration which contains twenty-three (23) exhibits that he relied upon in reaching his expert opinion.*fn8 See Nelson Dec. Nelson summarized his conclusions:

[I]t is my opinion, to a reasonable degree of engineering and scientific certainty, that the BIC J-15 mini-lighter that was involved here was defectively designed, and was unreasonably hazardous for its intended use, because (a) it was not designed and manufactured with reasonable fail-safe technology, which was feasible, and that would have prevented it from operating even if the latch were removed and (b) BIC disregarded the repeated advice of those companies which it had engaged which had stated that color and size of disposable lighters [made the lighters] particularly attractive to children because of these characteristics.

Nelson Dec. ¶ 22. As a threshold matter under Rule 702, the Court must now examine (1) Nelson's qualifications to testify about alternate designs incorporating fail-safe technology; and (2) his qualifications to testify about children's color preferences. See Fed. R. Evid. 702 (requiring a witness to be "qualified as an expert by knowledge, skill, experience, training or education"). Next, the Court must apply the first prong of the Daubert inquiry by evaluating Nelson's methodology or reasoning leading to his conclusions regarding the alleged defects in the J-15 lighter, causation of Josue's injury, alternative designs incorporating failsafe technology and an alternative design based on child color preference. See Daubert, 509 U.S. at 595 ("The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."). As a third and final step in determining whether expert testimony is admissible, courts apply the second prong of Daubert which tests any reliable testimony for fitness, or relevance, to the question(s) at hand.

D. Nelson's Qualifications

As explained below, Nelson is qualified to testify about failsafe technology in disposable butane lighters, but is not qualified to testify about child color preference or lighter designs based on color. Nelson is an engineer who has spent thirty-two (32) years designing, manufacturing and testing gas fuel products, including those which use butane. See Nelson Dec. ¶ 5. Butane is the type of fuel used in the lighter in this case. See id. Nelson worked as an engineer for Bernzomatic, a manufacturer of fuel gas and related products, for twenty-three years, during which time he "was responsible for the design of more than thirty-five (35) gas fueled and related products, and designed and/or specified details for more than two hundred (200) related components." Id. ¶ 6. In addition, Nelson was "personally responsible" for testing many fuel gas products, including "every one of the products" he himself designed for the company. Id. ¶ 7. He was also responsible for overseeing testing programs for "an entire line of butane fueled products, which included lighters." Id. ¶ 8. Nelson provides an impressive list of fuel gas and butane products that he has designed, tested and/or analyzed over the past three decades, including a propane torch employing fracture groove means technology. See Partial Schedule of Fuel Gas and Butane Products Designed, Tested, And/Or Analyzed by John Nelson, Ex. B to Nelson Dec; see also Nelson Dec. ¶ 11; infra Part II.E.1 (describing Nelson's proposed design involving fracture groove means technology). Nelson has also personally secured patents on three products utilizing piezoelectric spark ignition for fuel gas camp lanterns. Id. ¶ 41; infra Part II.E.2 (detailing Nelson's proposed design for a piezoelectric lighter with circuit breaker).

BIC contends that Nelson is not a qualified expert because he has never worked or consulted for a lighter manufacturer, has not taken courses dealing specifically with lighters, and has not previously testified in a lighter case. See Defendant's Memorandum of Law in Support of its Motion to Exclude Plaintiff's Expert and for Summary Judgment ("Def. Mem.") at 13. The Court finds no support for this contention.

Nelson's extensive background in engineering fuel gas and butane products is sufficient to qualify him as an expert on incorporating childproof or child-resistant failsafe technology into disposable lighters. An expert's training need not narrowly match the point of dispute in the case. See, e.g., Lappe v. American Honda Motor Co., 857 F. Supp. 222, 226 (N.D.N Y 1994) ("Liberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications."), aff'd, 101 F.3d 682 (2d Cir. 1996); McCullock, 61 F.3d at 1043 (holding that "quibble" over expert's lack of academic qualifications, where expert had "extensive practical experience," went to weight, not admissibility, of expert testimony).

On the other hand, plaintiffs have not shown that Nelson is qualified as an expert in any field of study related to child color preferences. Nelson's qualifications regarding childproof and child-resistant technology on lighters does not mean that he is qualified to testify about children's color preferences. The social science of child psychology and color preference differs from the physics of a child's ability to exert enough force to defeat a child-resistant or childproof safety feature. "Because I conclude that Nelson is not qualified to testify about child color preferences, I need not discuss in detail the reliability of his testimony on this subject.*fn9

E. Reliability of Nelson's Opinion on Failsafe Designs for Lighters

1. Nelson's Opinion on Alternative Failsafe Designs

Drawing from ten lighter designs for which BIC obtained patents as well as his own practical experience, Nelson offers two proposed design alternatives to the J-15 lighter's safety latch. He entitles the first the "Fracture Groove Means Design Concept" (hereinafter "Fracture Concept"). Nelson Dec. ¶¶ 35-37. This proposed design is based on "at least 2 of the" patents, although Nelson does not specify which patents he is referencing. Id. ¶ 35., Nelson does not define "fracture groove means" but offers that they are "readily used in the design of products and are incorporated almost exclusively for safety reasons." Id. ¶ 37. Apparently, `fracture groove means' refers to a built-in weakness in the plastic or other material. Nelson's Fracture Concept entails using fracture groove means to make a "simple modification" to the J-15's existing locking latch (child safety feature), which would make the locking latch break in two if anyone tried to remove it. Id. Even broken in two, the locking latch would be "functionally intact" because parts of it would be left within the body of the lighter, "continuing to prevent depression of the valve actuator." Id.*fn10 Nelson declares that his design is failsafe,*fn11 but later contradicts himself by stating that this design will render "a child's ability to operate the lighter [I extremely difficult because it would likely require . . . a level of skill and dexterity not normally found in young children," thus indicating that the lighter is not failsafe. Id. ¶ 37. The J-7 BIC model lighter used a version of the fracture groove technology advocated by Nelson but it was not failsafe because many adults were able to remove the entire piece of plastic constituting the safety feature. See Adams Dep. at 74. Nelson has not tested his design to show that it can be built, has provided no drawing of the design, and has not addressed BIC's test results showing that adults were often able to remove the entire safety feature with certain tools — thus nullifying the failsafe feature of the Fracture Concept.

2. Reliability of Nelson's Opinion on Alternative Failsafe Designs

I turn now to an evaluation of Nelson's proffered opinion in light of the Daubert factors. Daubert is to be applied flexibly. See Kumho Tire, 526 U.S. at 149 (Daubert factors not to be considered "a definitive checklist or test")). "A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule." Travelers Property Cas. Co. v. General Elec. Co., 150 F. Supp.2d 360, 363 (D. Conn. 2001). Certainly, the district court's role as a gatekeeper in screening out unreliable testimony is "tempered by the liberal thrust of the Federal Rules of Evidence and the presumption of admissibility." Borawick, 68 F.3d at 610; Bunt v. Altec Indus., Inc., 962 F. Supp. 313, 317 (N.D.N Y 1997) (citing Borawick); Liriano v. Hobart Corp., 949 F. Supp. 171, 176 (S.D.N.Y. 1996) (same). Daubert is not intended to replace the adversary system. See Fed. R. Evid. 702 Committee Note. Further, the Second Circuit espouses a particularly broad standard for the admissibility of expert testimony. See, e.g., Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (holding that testimony is to be admitted unless purely conjectural or based on totally unfounded assumptions). As discussed below, Nelson's testimony fails to meet the test for reliability outlined in Daubert, and for the most part, does not satisfy the other factors that have grown out of Daubert and its progeny.

a. Testing

"In analyzing the reliability of an expert's testimony, the "key question" is "whether it can be (and has been) tested." Daubert, 509 U.S. at 593 (alteration in original). Solid qualifications are not enough. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991-92 (5th Cir. 1997) (excluding testimony of qualified expert who failed to conduct tests); Clark v. Takata, 192 F.3d 750, 758 (7th Cir. 1999) (excluding testimony of highly qualified expert who failed to conduct tests); Cummins v. Lyle Indus., 93 F.3d 362 (7th Cir. 1996) ("Guesswork, even educated hunches by qualified experts, is not enough. The evidence must be genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist."). While conjecture by a qualified expert is worthy of careful attention, the courtroom is "not the place for scientific guesswork, even of the inspired sort." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). The axiom that "[l]aw lags science [but] does not lead it," id. at 319, applies equally to proposed engineering innovations in a design defect case. "[A]lternative designs by definition include elements of science, technology and methodology." Milanowicz v. Raymond Corp., 148 F. Supp.2d 525, 532 (D.N.J. 2001) (quotation omitted).

While testing is not an "absolute prerequisite" for an expert's theory of causation or alternative design to be admissible in a design defect, case, it is usually critical to show that an expert "adhere[d] to the same standards of intellectual rigor that are demanded in their professional work." Cummins, 93 F.3d at 369. Adherence to engineering standards of intellectual rigor almost always requires testing of a hypothesis if the expert cannot point to an existing design in the marketplace.*fn13 See, e.g., Brooks, 234 F.3d at 92 (rejecting proposed alternative design of kill switch); Oddi, 234 F.3d at 156-57 (excluding proffered alternative designs of biomechanical engineer where engineer had not tested either design for a safer bumper on a truck); Watkins, 121 F.3d 984 at 988 (rejecting proposed alternative design because alleged expert made no design drawings and conducted no tests of proposed alternatives);*fn14 Cummins, 93 F.3d at 366 (excluding proposed alternative design of industrial trim press because expert had never tested his designs nor read any studies of such tests); Pestel v. Vermeer Mfg. Co., 64 F.3d at 384 (8th Cir. 1995) (rejecting expert's proposed alternative design because not tested); Freitas v. Michelin Tire Corp., No. 94 Civ. 1812, 2000 WL 424187, at 2 (D. Conn. Mar. 2, 2000) (admitting engineer's expert opinion on alternative design in burst tire case where engineer had conducted numerous burst tests on tires, and reviewed burst tests performed by other experts); Jarvis v. Ford Motor Co., No. 92 Civ. 2900, 1999 WL 461813, at 4 (S.D.N.Y. July 6, 1999) (admitting expert's testimony in design defect case where expert's theory of causation had been "sufficiently verified through repeated tests on a model that accurately reflects the relevant electrical components on the 1991 Ford Aerostar."); Stanczvk v. Black & Decker, Inc., 836 F. Supp. 565 (N.D. Ill. 1993) (rejecting expert's proposed alternative design of a guard for allegedly defective saw because no testable design of concept). But see Colombo v. CMI Corp., 26 F. Supp.2d 574 (W.D.N.Y. 1998) (admitting testimony of engineering expert because expert need not develop and test a prototype nor provide drawings of alternative design); Surace v. Catertillar, Inc., No. 94 Civ. 1422, 1995 WL 303895, at 2 (E.D. Pa. May 16, 1995) (admitting testimony of engineering expert after concluding that engineer need not have tested his theory regarding defective warnings).*fn15 The presence of this factor in a design defect case also ensures that the focus of the jury's deliberation is on whether the manufacturer could have designed a safer product, not on whether an expert's proposed but untested hypothesis might bear fruit.

The Second Circuit's most recent discussion of testing in a design defect case took place in Brooks, which involved a teenager whose hand was amputated by an uncovered motor on a motor boat. Brooks, 234 F.3d at 90. The boy's father sued the manufacturer of the boat, alleging design defect. See id. At issue in Brooks was the admissibility of plaintiff's expert, Mr. Warren, who proffered the opinion that either of his proposed alternative designs, a propeller guard or a kill switch, would have averted the accident. See id. at 91. The district court, noting that Mr. Warren had not conducted "any actual testing to determine whether the use of a lanyard-activated kill switch would have ...


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