The opinion of the court was delivered by: Trager, J.
Plaintiff Gail Keyes ("Ms. Keyes" or "plaintiff") commenced this action against defendants American Airlines, Inc., AMR Corporation., and AMR Eagle Holding Corp. (collectively "American" or "defendants") to recover $5,000,000 with interest for injuries arising from defendants' alleged failure to warn passengers of pre-existing unsafe conditions and their attempts to conceal and cover up those defects. American has moved for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that American breached no duty of care to plaintiff and requesting a dismissal as a matter of law. American also moves to preclude the report and testimony of Charles R. Manning III, P.E., based on the criteria set forth in Rule 702 of the Federal Rules of Evidence.
On February 24, 1998, plaintiff and her husband, William Keyes ("Mr. Keyes"), traveled on a Boeing 767-200 aircraft on an American Airlines flight from John F. Kennedy International Airport, New York to San Diego, California. (See Declaration of Tania M. Torno ("Torno Decl."), Ex. C. ¶¶ 22-23; Ex. D; Ex. E at 32-33; Ex. F. at 16.) The plaintiff and her husband boarded the aircraft without incident and proceeded to their seats in the coach class section. (Torno Decl., Ex. E at 49, 51-52.) Plaintiff's husband sat in an aisle bulkhead seat with a galley across the aisle and plaintiff sat directly to his right. (Id. at 48-50.) Plaintiff did not not recall getting up from her seat at any time during the flight. (Id. at 54.)
The plane arrived in San Diego on or about the early morning hours of February 25, 1998. (Id. at 33.) As she disembarked the aircraft, plaintiff tripped and fell across the aisle adjacent to their seats. (See Defendants' Rule 56.1 Statement ("Defs.' 56.1 Stmt.") ¶ 6; Torno Decl., Ex. E at 54-55.) Her right hip came into contact with the floor of the airplane and her upper torso extended into the galley. (Torno Decl., Ex. E at 58; Ex. F at 45.)
The fall occurred as plaintiff began "sidestepping" out of the seat aisle and her right foot "caught something." (Id. at 54, 72, 74.) Plaintiff did not see what she had tripped over. (Torno Decl., Ex. E at 75-77; Ex. G at 6, 8.) Although plaintiff testified in her deposition that her husband was standing in front of his seat and facing her as she sidestepped into the aisle (See Torno Decl., Ex. E. at 55-56), plaintiff's husband testified that he did not observe her fall because he was getting a bag out of the overhead bin and had his back to her. (See Defs.' 56.1 Stmt. ¶ 8, Torno Decl., Ex. F at 34, 43-44; Ex. H at 6.)
The record contains inconsistent allegations as to what caused plaintiff's fall. In her original complaint, plaintiff claimed that she fell over an unspecified "raised and defective condition" that was covered with large pieces of tape. (See Torno Decl., Ex. A ¶¶ 29-30.) In her first and second amended complaints, plaintiff removed the duct tape reference and alleged that her fall was due to an unspecified "raised and defective condition." (See Torno Decl., Ex. B ¶ 22; Ex. C ¶ 22); see also Defs.' Ex. I.) In her deposition testimony, plaintiff asserted that her right foot "got caught in this thing in between the aisle and my seat." (See Torno Decl., Ex. E at 57.) The object which her right foot was caught on "felt like a strip, some kind of strip on the ground . . . that was raised . . . on the floor . . . . it was something like a plastic or something." (Id. at 72-73.) Plaintiff's husband also testified that when he first embarked on the aircraft he saw "two metal strips" which "seemed to go the full length of the aircraft." (Torno Decl., Ex. F at 22-23.) One strip, which ran alongside the outside of his seat, had a slot going down its entire length. (Id. at 59-60.) Mr. Keyes further testified that the strip was raised between a quarter of an inch and a half inch, and was about three-quarters to a half an inch wide. (Torno Decl., Ex. F at 58-59, 61). Mr. Keyes recalled wondering to himself "whether the seats fastened into it." (Id. at 58-59.) After plaintiff fell, Mr. Keyes looked in the area of the fall and again noticed the strip on the floor, but he did not see his wife trip over that strip. (Id. at 62.)
To support her position that a metal strip on the floor of the aircraft caused her to fall, plaintiff retained Charles R. Manning III, P.E. ("Manning"), a proposed expert in accident reconstruction. In a two-page report dated January 10, 2003 to plaintiff's counsel, Manning states that on November 19, 2002 at John F. Kennedy International Airport he examined the Boeing 767-200 aircraft in which the incident occurred. (Torno Decl., Ex. J.) During this examination, he documented and photographed the area in question, which American Airlines personnel reported had not been modified since the incident. (Id.) Manning's report also relies on "available documents," the Keyes' deposition testimony and statements made by the Keyes after they reviewed Manning's photographs of the aircraft. (Id.) Manning states that the "only thing on the floor in the area where Mr. and Ms. Keyes suggest she was exiting the seat row would be the seat mounting track." (Id.) Manning further notes that this seat mounting track was covered with a plastic cover, and states that "[t]he purpose of this cover would be to minimize the probability of individuals tripping over an exposed mounting track." (Id.) According to Manning, the Keyes reported that the seat mounting cover was not installed at the time of the incident, but "no physical evidence is available to confirm these statements." (Id.) Manning then concludes: "If the seat mounting track cover was missing as described by the Keyes, this would be the more likely source for initiating the trip. An individual could still possibly trip with the cover in place, but it would be less likely, since the cover has been designed (widened and rounded) to minimize the potential for tripping." (Id.)
Prior to plaintiff's fall, neither she nor her husband complained to American personnel of any defective or unsafe condition on the aircraft. (See Torno Decl., Ex. E at 73; Ex. F at 48, 57.) Immediately after she fell, several flight attendants came over to plaintiff and asked if she needed to go to the hospital or receive other medical attention, but plaintiff refused. (Torno Decl., Ex. E at 69-71.) The flight attendants also informed plaintiff that an authorized employee was not at the gate to fill out an accident report on her behalf, but that she could call a number to submit an accident report. (Id. at 69-70.) The flight attendants also offered a wheelchair, which she initially declined but later requested after exiting the aircraft with her husband's assistance. (Id. at 71, 80-82.) Although plaintiff used the wheelchair to go outside the airport, she did not use a wheelchair or a cane, nor seek medical assistance during her stay in San Diego. (Id. at 83-84, 95, 97.) While in San Diego, plaintiff did not file an accident report with American. (Id. at 98.)
When plaintiff checked in for her return flight to New York five days later, she spoke with Keith James ("James"), an American employee at the San Diego airport, about the incident. (Id. at 44, 96.) After plaintiff told James that she had fallen on her arrival to San Diego, James upgraded her ticket to a first-class seat on the return flight to New York, gave her his business card, and instructed her to call his office on Monday because he did not have a blank accident report for her to fill out. (Id. at 98.)
Sometime after she returned from New York, plaintiff called James's office and spoke to his secretary. (Id. at 104.) When plaintiff requested an accident report form, the secretary told her that a representative from the insurance company would call her on Monday of the following week. (Id.) However, no one ever called plaintiff; nor did plaintiff follow up on her request to receive this form or send any written requests to American. (Id. at 105.)
Immediately after her fall in the aircraft, plaintiff reportedly had a bruise and some pain in her right hip, and had trouble sitting during her stay in San Diego. (Id. at 110-11.) After her return to New York, the pain decreased, but when plaintiff resumed teaching, she occasionally experienced back pain at work. (Id. at 103, 111.) In May or June of 1998, plaintiff went to the emergency room at Long Island Jewish Hospital complaining of severe pain from her waist down.*fn1 (Id. at 103, 108.) Plaintiff told her examining doctors that she might have been bitten by a deer tick and had lifted heavy books regularly as a teacher. (Id. at 122-23.) After the visit, plaintiff underwent physical therapy on two or three occasions and was also given a prescription for Naproxyn. (Id. at 126-27, 129, 154-55.) On March 29, 1999, plaintiff went to the emergency room for blurred version. (Id. at 143-44.) In September 1999, plaintiff was involved in a car accident in a parking lot and sought medical help in January 2000 for pains in her left hand, arm, shoulder, and neck. (Id. at 172-75, 181). Plaintiff also recalled sweeping snow with a broom in January 2000 and feeling "a click" in her back which was noted in a doctor's report in January 2000. (Id. at 168-71, 179.) As plaintiff's back pain continued to persist, a physician recommended that plaintiff undergo surgery to avoid potential permanent nerve damage in her legs. (Id. at 188-89.) An MRI dated January 28, 2000 revealed an L4, 5 disk herniation to the left side of the foramen, and a disk fragment which had migrated and hit a nerve. (See Affirmation of Mark S. Zemcik ("Zemcik Aff.") Ex. 2 at 19.) To remove the disk fragment, on May 24, 2000, plaintiff underwent a spinal surgery called hemilaminectomy with disketomy and exploration of the left L4 nerve. (Id. at 22.) Dr. Jeffrey Spivak, the doctor who performed the surgery, had no opinion as to what had caused plaintiff's injury. (Id. at 25.)
On August 2, 2000, plaintiff commenced the instant suit. Following the discovery period, defendants filed a motion for summary judgment on September 4, 2003. On September 17, 2004, plaintiff, with the court's permission, made a limited discovery request for "all maintenance, repair or other records concerning the seat tracks and seat track mounting covers for the subject aircraft." (Letter from Mark S. Zemcik to the Court (Sept. 17, 2004).) One week later, on September 24, 2004, the court denied the defendants' motion, but gave leave to renew after American had complied with plaintiff's request for the maintenance and repair records. During a status conference held on April 8, 2005, the defendants sought to renew their summary judgment motion. The court again reserved decision, and ordered American to produce, if available, daily records of repairs made on the aircraft in the time surrounding the accident. (Minute Entry for Status Conference of April 8, 2005.) If no records were available, American was ordered to provide an explanation of its document retention policies. (Id.) On July 22, 2005, defendants submitted the affidavit of Danny B. Hodge, Managing Director of Quality Assurance and Chief Inspector for American ...