The opinion of the court was delivered by: Platt, District Judge.
Before the Court is a Motion by Defendants Mine Safety Appliances Company ("MSA") and Home Depot USA, Inc. ("Home Depot," and collectively "Defendants") seeking to exclude Plaintiff Randall Keenan's ("Keenan" or "Plaintiff") liability expert, Leo J. DeBobes ("Mr. DeBobes"), pursuant to Rules 104(a) and 702 of the Federal Rules of Evidence. For the following reasons, Defendants' Motion is DENIED.
On February 12, 2003, Defendants removed this case from New York Supreme Court to this Court. Plaintiff later filed an Amended Complaint on December 1, 2003.
On December 27, 2004, Plaintiff submitted Mr. DeBobes' report (the "DeBobes Report") as an exhibit to its cross motion for summary judgment. On January 4, 2005, that motion was terminated by the Court due to improper filing, and Plaintiff did not move to re-file. On May 10, 2005, Defendants moved to exclude Plaintiff's expert. About two months later, on July 5, 2005, this Court denied Defendants' motion to exclude pending a Daubert hearing, and granted Plaintiff leave to file an amended expert report, which Plaintiff did not do. On November 22, 2005, this Court held the Daubert hearing and Mr. DeBobes testified.
On August 10, 2002, Plaintiff was working for Cablevision*fn1 at a residential property located in Calverton, New York. While hammering a "J-hook" into a wooden telephone pole, the J-hook ricocheted back and struck his left eye. At the time of the accident, Plaintiff was wearing safety glasses. Plaintiff alleges the J-hook went underneath these safety glasses.
Plaintiff claims that he was wearing "custom fit safety glasses with blue mirror lens." These glasses were allegedly manufactured by MSA and purchased by the Plaintiff at Home Depot. Plaintiff was not using glasses supplied by Cablevision because he had lost the pair given to him.(DeBobes Report at 2.)Plaintiff no longer has the glasses he wore during the incident.
As a result of the injury, Plaintiff alleges that he suffered a corneosclarael laceration of his left eye. He underwent surgery for this injury and lost sight in that eye. (Compl. & 17.)
On March 10, 2004, Plaintiff was interviewed by Mr. DeBobes. Mr. DeBobes took measurements of Plaintiff's face wearing an identical pair of safety glasses, and photographed him wearing them in various positions. (Daubert Hearing Transcript ("Tr.") at 11.) Mr. DeBobes found the glasses did not sit properly on Plaintiff's face and left numerous gaps. During the interview, Plaintiff provided Mr. DeBobes with the details of the accident. Mr. DeBobes then prepared a report.
Mr. DeBobes made several relevant conclusions. First, he found that the safety glasses were clearly defective for uses which could result in an impact from below. Second, Mr. DeBobes stated that reasonably available suitable eye protection existed at the time of Plaintiff's injury which would have minimized his exposure. Third, Mr. DeBobes found that the package erroneously claimed the glasses were "eye protection" that "meets OSHA [Occupational Safety and Health Administration] and ANSI [American National Standards Institute] requirements" because these groups had not set forth rules relating to this specific type of eye protection. Fourth, Mr. DeBobes found the warnings on the glasses were defective because they contained no written or pictorial instructions for their use. (DeBobes Report at 3-5.)
Defendants argue that Plaintiff's expert should be excluded pursuant to Fed. R. Evid. 104(a)*fn2 and 702*fn3 because (1) his qualifications fail to meet the standards of admissibility; and (2) his methodology lacks scientific or technical reliability. Matters of exclusion or inclusion are left in the broad discretion of ...