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ZOLLINGER v. OWENS-BROCKWAY GLASS CONTAINER

October 31, 2002

ROBERT J. ZOLLINGER AND ROBIN ZOLLINGER, PLAINTIFFS
V.
OWENS-BROCKWAY GLASS CONTAINER, INC., DEFENDANT.



The opinion of the court was delivered by: David N. Hurd, United States District Judge

  MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

II. FACTS

At all times relevant hereto, Zollinger was employed by A.C. Leadbetter & Sons, Inc. Defendant hired A.C. Leadbetter & Sons to rebuild a furnace at defendant's Auburn facility. On December 14, 1999, plaintiff and one of defendant's employees, David Hopkins ("Hopkins"), were operating forklifts in defendant's warehouse when they collided at an intersection of two aisles. Zollinger's forklift tipped over and he sustained the injury to his left foot. At the time of the accident, plaintiff was not wearing the seat belt on the forklift.

III. STANDARD OF REVIEW

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).

IV. DISCUSSION

A. Expert Testimony

Plaintiffs seek to exclude the testimony of defendant's proffered accident reconstruction expert Richard Otterbein ("Otterbein"). Plaintiffs argue that (1) defendant has failed to lay a foundation as to Otterbein's ability to testify as a seat belt expert; (2) Otterbein is not qualified as an accident reconstructionist; (3) expert testimony is not needed to determine whether it was reasonable for Hopkins to assume he was alone in the warehouse; (4) Otterbein's report and testimony is otherwise not based on adequate facts or data; and (5) defendant failed to make a full disclosure as required by Fed.R.Civ.P. 26(a)(2)(B). Defendant disagrees, contending that Otterbein possesses all the necessary prerequisite training and education to form an opinion on the issues in this case, he conducted a thorough analysis of this matter, his opinion is helpful to a trier of fact in understanding evidence and/or determining issues concerning the accident, and plaintiff's arguments go to the weight of Otterbein's testimony, rather than its admissibility.

Rule 702 of the Federal Rules of Evidence provides that:

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, if (1) the testimony is based on 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.

A district court is vested with broad discretion whether to admit expert testimony. See United States v. Feliciano, 223 F.3d 102, 120 (2d Cir. 2000), cert. denied sub. nom. 532 U.S. 943 (2001). As an initial matter, expert testimony is admissibly only "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Once this threshold has been met, the expert's testimony must be shown to be based on more than unsupported speculation or subjective belief. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 590 (1993). It need not, however, rise to the level of a known certainty. Id. The testimony must rest on a reliable foundation and be relevant to the issues presented. Amorgianos v. Nat'l R.R. Passenger Corp., No. 01-7508, ___ F.3d ___, 2002 WL 1978911, at *___ (2d Cir. Aug. 28, 2002).

The standards of Fed.R.Evid. 401 dictate whether the testimony is relevant. Id. Rule 702 itself sets forth some guidelines for determining whether the testimony rests on a reliable foundation.*fn1 These factors are not, however, exclusive. Id. The inquiry must necessarily be flexible and correlate to the facts of the particular case. Id. "In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions." Id. That is not, however, to suggest that a district court must remain blind to the expert's ultimate conclusions. To the contrary, "`[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.'" Id. (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). In short, expert testimony should be admitted if the expert demonstrates "good grounds" for his or her conclusions. Id.

Here, defendant's expert offers testimony concerning (1) the cause of the accident (whether Zollinger's forklift tipped because of the impact with Hopkins' forklift or Zollinger's alleged erratic maneuvering to avoid the impact); and (2) whether ...


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