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December 15, 2004.


The opinion of the court was delivered by: LAWRENCE KAHN, District Judge


I. Background

On June 1, 1998, Plaintiff Clark Seeley ("Seeley") was at his home heating Pop-Tarts® in his toaster, which was designed, manufactured, and distributed by Defendant Hamilton Beach/Proctor-Silex, Inc. ("Hamilton Beach"). Hamilton Beach Attorney Aff. (Dkt. No. 17) at ¶ 9. Seeley then left the residence while the Pop-Tarts® were still heating in the toaster. Id. After Seeley left, the toaster allegedly malfunctioned, causing a fire in the kitchen. Complaint (99-cv-1750 Dkt. No. 1) at ¶ 8.*fn2 The fire spread to the rest of the house, which resulted in extensive damage. Id. at ¶ 9. Seeley and Plaintiff Jannine Walton (collectively, "Plaintiffs") filed a claim with their insurance company, Liberty Mutual, which paid them approximately $145,000 pursuant to the terms of their policy. Id. at ¶ 11. Plaintiffs, however, estimate the damage from the fire to be over $245,000. Id. at ¶ 10. Plaintiffs filed the instant suit against Hamilton Beach to recover damages for which they were not compensated by their insurance company based upon theories of negligence, strict products liability, and breach of warranties with respect to their Hamilton Beach toaster that allegedly caused the fire.*fn3 Id. at ¶¶ 15, 18, 28. Currently before the Court is Hamilton Beach's motion seeking to preclude the testimony of the Plaintiffs' proposed expert witness, Michael Wald ("Wald"), pursuant to Federal Rule of Evidence ("FRE") 702.

  II. Discussion

  A. Expert Testimony

  1. Standard

  The admissibility of expert and other scientific or technical expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides as follows:
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 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. "[T]he Supreme Court has made clear that the district court has a `gatekeeping' function under Rule 702 — it is charged with `the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). This duty is equally applicable to expert testimony based upon engineering principles. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). "In fulfilling its gatekeeping role, the trial court should look to the standards of Rule 401 in analyzing whether proffered expert testimony is relevant, i.e., whether it ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Amorgianos, 303 F.3d at 265 (quoting Campbell v. Metro. Prop. and Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir. 2001)). Then, the district court must determine whether the proffered testimony has a sufficiently reliable foundation to permit it to be considered, making this determination with reference to the indicia of reliability identified in Rule 702, namely (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case. See id. "In short, the district court must `make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Id. at 265-66 (quoting Kumho, 526 U.S. at 152).

  In addition to the specific criteria set forth by Rule 702, the Supreme Court set out a list of non-exclusive factors that the district court may consider in determining whether an expert's reasoning or methodology is reliable. These factors include: (1) whether the theory or technique on which the expert relies can be and has been tested — that is, whether the expert's theory can be challenged in some objective or empirical sense; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the technique or theory and the existence and maintenance of standards controlling the technique or theory's operation; and (4) whether the theory or technique has been generally accepted by the relevant scientific community. See Daubert, 509 U.S. at 593-94. These factors do not constitute a "definitive checklist or test," however, as "[t]he inquiry envisioned by Rule 702 is . . . a flexible one." Id. The flexibility of Rule 702 has been specifically recognized regarding expert engineering testimony. Kumho, 526 U.S. at 150. For example, the Supreme Court noted that the reliability of expert engineering testimony in one case may depend heavily upon the underlying scientific foundation, while in another may depend primarily upon personal knowledge or experience. Id. Thus, "the gatekeeping inquiry must be tied to the facts of a particular case." Amorgianos, 303 F.3d at 266 (quoting Kumho, 526 U.S. at 150).

  The flexibility of the inquiry is meant to ensure that the district court is given the discretion necessary "to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact." Id. at 267. Thus, in making its reliability determination, "the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Id. If the court finds some flaw in the expert's reasoning, the judge should only exclude the expert's testimony if that flaw is large enough that the expert lacks "good grounds" for his conclusions. Id. This tendency toward limiting the exclusion of expert testimony "accords with the liberal admissibility standards of the federal rules and recognizes that our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony." Id. As the Daubert court explained, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. 2. Wald's Testimony

  According to Wald's report, he will testify that an examination of the toaster and surrounding items indicated that there was abnormal electrical activity in the interior of the toaster, causing a fire inside the unit while it was operating. Wald's Report (Dkt. No. 17, Ex. H) at 1. He will explain that ending the toasting cycle requires the horizontal movement of a rod across the bottom of a toasting chamber and through a small cutout in the front of the toaster frame. Id. When the toaster reaches a certain temperature, a bi-metal strip bends in response, causing this horizontal movement of the bar. Id. The bar must move far enough to push switch contacts closed, which causes the toast cycle to end. Id. Wald will testify that in order for the rod to move through the cutout, it must be free of debris that may drip down on it from the toasting chamber above. Id.

  Wald will testify that he performed a series of experiments in which he put Pop Tarts® and other toaster pastries in the toaster at different settings, and put sugar pastry frosting directly on the rod. Wald's Deposition (Dkt. No. 27) at 54-55; Wald's Report (Dkt. No. 17, Ex. H) at 1. He asserts that frosting can drip on the rod during normal use, and that movement of the rod through the cutout could be impeded enough that a Pop Tart® would ignite before the toast cycle would end. Wald's Report (Dkt. No. 17, Ex. H) at 1. Wald will testify that the design of the toaster, by having an unprotected rod below a toasting chamber that could collect fallen debris from above and which must fit through a small cutout to end the toast cycle, "presents the direct opportunity for a fire to occur under normally expected operating procedures." Id. at 2. Wald is expected to testify that this makes the design defective. Id. Further, previous Hamilton Beach designs did not have an unprotected rod, and no other manufacturer of which Wald is aware has such an unprotected rod. Id. He will testify that there are safer alternative designs about which Hamilton Beach had knowledge. Id.

  Hamilton Beach asserts that Wald's testimony does not meet the requirements of Rule 702 because his methodology and reasoning are inherently unreliable and not scientifically valid. Hamilton Beach Memo. (Dkt. No. 18) at 4. Hamilton Beach first claims that by forcibly creating a situation by putting frosting on the rod to meet his theory of what occurred, Wald has not performed sufficient tests, and he is not basing his conclusion on any scientific principle. Id. at 6. Further, Hamilton Beach states that Wald's opinions are based upon assumed facts that are not in evidence. Id. at 7.

  As noted above, the Daubert test is a flexible one, and not all of the enumerated factors are equally relevant to every type of expert testimony. The testimony of an expert can be reliable while not satisfying each factor. In this case, the testing that was performed by Wald was so specific to this situation that it is not reasonable to require that it have been subject to peer review, have a known or potential rate or error, or have general acceptance within the scientific community. Wald's opinions are, however, capable of being tested. Even though Wald's testimony does not satisfy every Daubert factor, a thorough review of Wald's methods, reasoning, and conclusions shows that he has "good grounds" for his conclusions that will assist the trier of fact. See e.g. Amorgianos, 3093 F.3d at 267.

  Wald performed a variety of tests that are appropriate to this litigation, and his opinions "are supported by rational explanations which reasonable men might accept, and none of his methods strike the court as novel or extreme." Lappe v. Am. Honda Motor Co., Inc., 857 F. Supp. 222, 228 (N.D.N.Y. 1994) (Hurd, J.). Wald performed dozens of tests involving Hamilton Beach toasters containing the same rod mechanism as Plaintiffs' toaster. Wald's Deposition (Dkt. No. 27) at 27. One of his tests consisted of placing Pop Tarts® and other toaster pastries in toasters and having them go through toasting cycles. Id. at 54-55. He did this approximately fifteen to twenty times. Id. at 28. After various cycles, he reported seeing frosting on various components inside the toaster, including the rod. Id. at 55. In his tests, he placed the Pop Tarts® and pastries lengthwise and horizontally, and used many different heat settings. Id. at 55-56. The second type of test he did involved placing melted sugar frosting and sugar crystals directly on the rod, which impeded the movement of the rod. Id. at 61. He did this about twelve times. Id. at 78. Although he cannot say with certainty the amount of frosting or sugar crystals he used in each experiment, the lack of precise measurements does not render his testimony inadmissible. See Lappe, 857 F. Supp. at 228. Wald stated that he caused fires in three ...

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