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Topliff v. Wal-Mart Stores East LP

March 22, 2007

DOUGLAS TOPLIFF, INDIVIDUALLY AND AS PARENT OF TANISHA TOPLIFF, PLAINTIFF,
v.
WAL-MART STORES EAST LP, DEFENDANT.



DECISION and ORDER

This action is before me on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Local Rule N.D.N.Y. 72.2(b). (Dkt. No. 23.) Currently pending are Defendant's motion to exclude the testimony of Plaintiff's expert Meyer R. Rosen, its motion for summary judgment, and its motion to bifurcate the trial in this action into two parts (on the issues of liability and damages). (Dkt. Nos. 44-46.) For the reasons stated below, I grant in part and deny in part Defendant's motion to preclude, I grant Defendant's motion for summary judgment, and I deny as moot Defendant's motion to bifurcate.

Table of Contents

I. BACKGROUND.......................................................................................................................4

II. MOTION TO EXCLUDE EXPERT TESTIMONY.................................................................5

A. Mr. Rosen's Qualifications...........................................................................................7

1. Qualifications Regarding Flammability of Consumer Apparel.........................9

2. Qualifications Regarding Use of Flame Retardants on Consumer Apparel...........................................................................................16

3. Qualifications Regarding Warnings on Consumer Apparel.............................23

4. Qualifications Regarding Fire Investigation...................................................30

B. Reliability of Mr. Rosen's Proffered Testimony.........................................................34

1. Reliability of Testimony Regarding Flammability of Consumer Apparel...........................................................................................35

a. Testing Performed by Mr. Rosen.......................................................35

b. Arguments and Analysis....................................................................38

2. Reliability of Testimony Regarding Use of Flame Retardants on Consumer Apparel...........................................................................................42

3. Reliability of Testimony Regarding Warnings on Consumer Apparel............45

4. Reliability of Testimony Regarding Fire Investigation..................................47

III. MOTION FOR SUMMARY JUDGMENT............................................................................52

A. Plaintiff's Claim of Strict Liability.............................................................................52

1. Manufacturing Defect.....................................................................................52

2. Design Defect.................................................................................................57

a. Product's Utility to Public as Whole, and Product's Utility to Individual User...............................................................................58

b. Likelihood that Product Will Cause Injury........................................59

c. Availability of Safer Design...............................................................60

d. Possibility of Designing and Manufacturing Product So that It Is Safer but Remains Functional and Reasonably Priced, and Manufacturer's Ability to Spread Cost of any Safety-Related Design Changes............................65

e. Degree of Awareness of Product's Potential Danger that Can Reasonably Be Attributed to Injured User..........................................67

3. Inadequate Warnings......................................................................................67

B. Plaintiff's Claim of Negligent Failure to Warn...........................................................68

1. Relevant Legal Standard.................................................................................68

2. Danger from "Melt Drip" Effect of 100% Polyester......................................75

a. No Record Evidence of Such Danger................................................75

i. Types of Evidence that Typically Might Suffice to Create Issue of Fact Under Similar Circumstances..................77

ii. Plaintiff's Arguments.............................................................80

b. In any Event, No Record Evidence of Knowledge or "Reason to Know" of Such Danger.....................................................87

i. Types of Evidence that Typically Might Suffice to Create Issue of Fact Under Similar Circumstances..................88

ii. Plaintiff's Arguments.............................................................88

3. Danger from Loose-Fit and/or Fuzziness of Jogging Suit..............................94

a. Preclusion of Assertion of Such Claim..............................................94

b. In any Event, No Record Evidence of Such Danger..........................95

c. In any Event, No Record Evidence of Knowledge or "Reason to Know" of Such Danger...................................................100

4. Grounds on Which Defendant's Motion Is Not Decided..............................102

C. Plaintiff's Claim of Negligent Failure to Inspect and/or Test...................................107

D. Plaintiff's Claim of Breach of Implied Warranty of Merchantability.......................111

E. Plaintiff's Derivative Claim for Medical Expenses, Loss of Services and Loss of Companionship.......................................................................................115

IV. MOTION TO BIFURCATE TRIAL.....................................................................................117

I. BACKGROUND

This action, sounding in strict liability, negligence and breach of warranty, arises out of an accident occurring on October 16, 2002, in which then-five-year-old Tanisha Topliff ("Tanisha") was severely burned and permanently scarred in an accident that occurred at the home of her parents, Douglas and Margaret Topliff. (Dkt. No. 1, ¶¶ 3, 17 [Plf.'s Compl.]; Dkt. No. 44, Part 8, ¶ 17.a. [Plf.'s Responses to Def.'s Interrogatories].)*fn1 The plaintiff in this action is Tanisha's father, Douglas, who is suing on behalf of Tanisha as her parent, and on behalf of himself under a derivative theory of liability. (Dkt. No. 1, ¶¶ 1, 36-37 [Plf.'s Compl.].)

Generally, Plaintiff alleges that the accident occurred when the 100% polyester jogging suit that Tanisha was wearing at the time ignited and melted upon contact with hot air and debris from a wood-burning stove, caused by a "back draft" from the stove. (Id. at ¶ 17.) Plaintiff further alleges that Defendant, Wal-Mart Stores East LP ("Wal-Mart" or "Defendant"), was the retailer of the 100% polyester jogging suit in question. (Id. at ¶¶ 4-6, 17.) Plaintiff alleges that the jogging suit was purchased by Beatrice Topliff, Tanisha's grandmother, at one of Defendant's stores, in December of 2001, as a gift for Tanisha.*fn2

More specifically, Plaintiff's Complaint asserts five causes of action against Defendant:

(1) a cause of action for strict products liability alleging that the jogging suit in question contained a manufacturing defect, a design defect, and/or an inadequate warning; (2) a cause of action for negligent failure to warn Plaintiff of the alleged defect; (3) a cause of action for negligent failure to inspect and/or test the jogging suit in question for the alleged defect before sale; (4) a cause of action for breach of implied warranty of merchantability under N.Y. U.C.C. § 2-314; and (5) a derivative cause of action for medical expenses, loss of services and loss of companionship. (See generally id. at ¶¶ 6-37.)*fn3

II. MOTION TO EXCLUDE EXPERT TESTIMONY

In support of his claims, Plaintiff relies on the expert testimony of Meyer R. Rosen, M.S., of InterCity Testing & Consulting. Among other things, Mr. Rosen's Expert Report asserts that the 100% polyester jogging suit in question was defective in that it did not contain a fire retardant, the presence of which would have caused the fire to be extinguished before the "melt-drip" feature of the jogging suit's fabric burned Tanisha. (Dkt. No. 44, Part 42, at 2-7, 9-11 [Expert Report of Meyer Rosen].)*fn4 Mr. Rosen also asserts that Defendant failed to provide proper warnings on the jogging suit as to the inherent danger posed by the "melt-drip" property of its 100% polyester fabric. (Id.)

Generally, Defendant argues that the Court should not allow Mr. Rosen to testify at trial as an expert for three reasons. First, argues Defendant, under Rule 702 of the Federal Rules of Evidence, Mr. Rosen is not "qualified" to testify as an expert in the subjects he proposes (i.e., the subjects of fire investigation, the flammability of apparel, the use of flame retardants in or on apparel, and the use, placement or composition of warnings for apparel), because he does not possess the necessary "knowledge, skill, experience, training, or education" in those subjects. Second, argues Defendant, under Rules 702 and 703 of the Federal Rules of Evidence, Mr. Rosen's methods are not "reliable" because he altered standard testing protocols to achieve the results he desired, and he relied on insufficient facts to reconstruct the alleged incident that injured Tanisha. Third, argues Defendant, under Rules 703 and 403 of the Federal Rules of Evidence, Mr. Rosen's proposed testimony should be excluded since the probative value of that testimony is substantially outweighed by its prejudicial effect upon Defendant.

"[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a) [of the Federal Rules of Evidence]. Under that Rule, the proponent [of the expert testimony] has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." Fed. R. Evid. 702, Advisory Committee Notes: 2000 Amendments.*fn5 It is true that, generally, such a proponent is aided by the "presumption of admissibility of evidence."*fn6 However, even this presumption will not rescue a proponent who has failed to adduce sufficient evidence in support of his position.*fn7 Keeping these general points in mind, I proceed to an analysis of the particular issues raised by Defendant's motion.

A. Mr. Rosen's Qualifications

Under Rule 702 of the Federal Rules of Evidence, before a witness may be certified as an expert, he must be found to be "qualified" as an expert "by knowledge, skill, experience, training, or education." Fed. R. Evid. 702. Specifically, Rule 702 of the Federal Rules of Evidence 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 opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliableprinciples and methods, and (3) the witness has applied the principles and methods to the facts of the case.

Fed. R. Evid. 702 [emphasis added]. Under this rule, the trial judge stands as a "gatekeeper," charged with determining whether the proffered testimony satisfies a number of standards, including whether the proposed expert is "qualified" to give the proffered opinion. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-590, 597 & nn.7, 10 (1993). "To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony." U.S. v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) [citation omitted]. In assessing whether a proposed expert is "qualified," the trial judge should remember the "liberal[] purpose" of Rule 702, and remain "flexibl[e]" in evaluating the proposed expert's qualifications.*fn8

Having said that, of course, "a district court may properly conclude that witnesses are insufficiently qualified . . . [where] their expertise is too general or too deficient."*fn9

1. Qualifications Regarding Flammability of Consumer Apparel

Generally, Mr. Rosen opines that garments containing synthetic fibers such as polyester, when untreated with flame retardant, are more dangerous than garments containing natural fibers such as cotton, due to the capability of 100% polyester fabrics to melt, and adhere to one's skin, when subjected to "high heat"--a fact that is not known to "the vast majority of people wearing such garments."*fn10 Defendant argues that Mr. Rosen is not qualified to give an expert opinion regarding the flammability of consumer apparel.*fn11 Specifically, Defendant argues that Mr. Rosen's attendance at a few seminars and his claims to have authored an unpublished article on the subject are insufficient to make him an expert on the subject.*fn12

While Plaintiff, in his memorandum of law, opposes this argument in a general fashion (arguing that "there is no question that the plaintiff's expert has the qualifications to testify as to the issues of flammability," that "the qualifications necessary to testify as an expert are minimal," and that "Plaintiff's expert has vast experience in evaluating the flammability of clothing"), he points to no specific education or experience of Mr. Rosen that qualifies him to give an expert opinion on the subject of the flammability of consumer apparel.*fn13 Similarly devoid of any specific argument in refutation of Defendant's argument on this issue is the "affidavit" of Plaintiff's counsel.*fn14 It is only by examining the affidavit of Mr. Rosen that the Court can find any real opposition to Defendant's argument.*fn15 As an initial matter, this response is inadequate in that it was not referenced in Plaintiff's memorandum of law, as is required under the Local Rules of Practice for this Court.*fn16 In any event, Mr. Rosen's testimony does little to refute Defendant's argument.

Specifically, Mr. Rosen's testimony as to why he is qualified to testify on the subject of the flammability of consumer apparel occurs in only two paragraphs of his affidavit.*fn17 In those two paragraphs, he asserts that he is so qualified because (1) his "expert testimony and opinions relative to flammable fabrics has [sic] been accepted in a court of law on two previous occasions," namely in 2000 in the case of DeFrancisco v. Cotton Deluxe (N.J. Super. Ct.), and in 2004 in the case of U.S. v. Robinson Lazala (S.D.N.Y.), (2) he has rendered "expert consultant services in this area including extensive research in the field of flammable fabrics conducted in numerous fabric fire tests, depositions and[] preparation of reports[] in many other flammable fabrics cases which have not gone to Court," and (3) in 2000 he finished researching and co- authoring a 500-page book entitled, "Handbook of Rheology Modifiers--Practice Use and Applications," which involved "the subject matter of this case--the thermo plastic behavior and viscosity of molten polyester."*fn18

With regard to Mr. Rosen's testimony that a New Jersey state court found in 2000 that he was qualified to testify as an expert regarding flammable fabrics in the case of DeFrancisco v. Cotton Deluxe (N.J. Super. Ct.), despite my request that Plaintiff provide the docket number of that case, the year the case was filed and closed, and any orders or transcripts finding that Mr. Rosen was an expert in the area of flammable fabrics (Dkt. No. 64), Plaintiff did not provide those details (Dkt. No. 65). Using Lexis, Westlaw and the New Jersey court system's website, and both variations on the name of the plaintiff given by Mr. Rosen, I have been unable to find any decisions or orders in that case which would give me an indication of the facts and issues in the case.*fn19 As stated above, it is Plaintiff's burden to establish that Mr. Rosen is qualified in the area of flammable fabrics by a preponderance of the evidence.*fn20

Moreover, I am somewhat dubious of the accuracy of Mr. Rosen's assertion about DeFrancisco v. Cotton Deluxe (N.J. Super. Ct.), given the dubiousness of his assertion about the other case in which he was allegedly found to be an expert--United States v. Robinson Lazala (S.D.N.Y.). Despite my request that Plaintiff provide the docket number of "United States v. Robinson Lazala," the year the case was filed and closed, and any orders or transcripts finding that Mr. Rosen was an expert in the area of flammable fabrics (Dkt. No. 64), Plaintiff did not provide those details (Dkt. No. 65). In any event, the details that Mr. Rosen did provide appear inaccurate, including the name of the counsel who apparently hired him ("William Joseph Stampur," not "William Stampu") and the name of the party for whom he was apparently working ("Joseph Solem," not "Robinson Lazala" or "Robinson Latula," which does not appear to have been the name of any of the many co-defendants in the case, although there appears to have been a co-defendant named, "Raulston DeCosta Robinson").*fn21 Moreover, I do not understand how Mr. Rosen could have testified as an expert in district court in that case on March 2, 2004, when a final judgment was entered in that case on September 24, 2002, and no activity appears on the docket in 2004.*fn22 Finally, it is difficult to conceive how the criminal charges in that action--which appear to have stemmed from an alleged conspiracy to distribute narcotics--could have involved the flammability of fabrics.

Nor am I persuaded by Mr. Rosen's rather conclusory assertion that he has rendered "expert consultant services in this area including extensive research in the field of flammable fabrics conducted in numerous fabric fire tests, depositions and[] preparation of reports[] in many other flammable fabrics cases which have not gone to Court."*fn23 For whom did he render such services, what were those services specifically, and when were they rendered? A review of Mr. Rosen's curriculum vitae yields no clear answers to these questions.*fn24 Nor does a review of Mr. Rosen's deposition testimony.*fn25 As for the deposition testimony and expert reports Mr. Rosen allegedly provided in this area in cases that have not gone to court, one can only guess which (if any) of the dozen cases listed by him in his curriculum vitae are such cases.*fn26 I note that, in one of those dozen cases, Mr. Rosen was clearly found not to be qualified as an expert, although I cannot determine on what subject he was attempting to testify (presumably, it was on the subject of groundwater contamination as viewed from the field of rheology).*fn27

Under the circumstances, I agree with Defendant that Mr. Rosen lacks the particular expertise to qualify him as an expert on the general subject of the flammability of consumer apparel. In addition to the reasons stated above, Mr. Rosen's lack of fitness to testify on the general subject of the flammability of fabrics is supported by an October 15, 1999, ruling by the Eastern District of New York in Gurwitz v. Wal-Mart, 97-CV-5678, which precluded similar testimony by Mr. Rosen.*fn28 I find no sufficient education and/or experience, acquired by Mr. Rosen since October 1999, that warrants a finding that he is now so qualified on the general subject of the flammability of consumer apparel. (See Dkt. No. 44, Part 44 [Curriculum Vitae of Meyer Rosen, as of 7/25/05].) Granted, in 2001, Mr. Rosen attended a one-day seminar on "Regulatory Compliance for Flammability of Children's Sleepwear," and he published an article entitled, "Technologies Grow Flame Retardants Market." (Id. at 2, 6.) However, simply stated, I find that these accomplishments (which are only tangentially related to the subject at hand) are not enough to tip the scales in favor of finding Mr. Rosen qualified as an expert on the general subject of the flammability of consumer apparel.

However, I find that Mr. Rosen's background as a chemist and chemical engineer qualify him to testify on the limited subject of the chemical properties of polyester in general and how such properties are subject to change due to the application of heat or flame.*fn29 As a practical matter, while the line might seem fine between testifying on this subject and not testifying on the general subject of the flammability of consumer apparel, that line has been walked before. See Wilson v. Bradlees of New England, 250 F.3d 10, 18 (1st Cir. 2001) (upholding district court's ruling permitting plaintiff's expert to testify on limited subject of "matters involving chemistry and the flammable properties of polyvinyl chloride and plastisols," but not on "usages and practices in the silk-screening industry, or [on] the commercial feasibility of printing shirt logos with flame-retardant ink"). It is noteworthy that, in the Wilson case, the expert whose testimony was excluded on textile issues other than those related to chemistry appears to have had more education and experience with regard to textiles than does Mr. Rosen.*fn30 In addition, the expert in question was Gordon Damant, who appears to currently be one of Mr. Rosen's colleagues at Inter-City Testing & Consulting Corp.*fn31

Accordingly, Mr. Rosen is qualified to testify on the limited subject of the properties of polyester and how such properties are subject to change due to the application of heat or flame, but he would not be permitted to testify on the more general subject of the flammability of consumer apparel.*fn32

2. Qualifications Regarding Use of Flame Retardants on Consumer Apparel

Mr. Rosen's report asserts that polyester fiber is very easy to flame-retard.*fn33 Specifically, his report asserts that the fabric used to make Tanisha's jogging suit could have been made safe through the application of a commercial flame retardant such as Antiblaze NF10.*fn34 Mr. Rosen's report also asserts that the cost to flame-retard each piece of garment would be ten to thirty cents per garment, which is "a small fraction of the price typically charged for finished garments such as the subject-jogging suit . . . ."*fn35

Defendant argues that such testimony should be precluded because Mr. Rosen is not qualified to give an expert opinion regarding flame resistant treatments for consumer apparel.*fn36

Specifically, Defendant argues that, "[w]hile [Mr. Rosen's] professional experience has involved some use of flame resistant materials, the application of flame retardant chemicals to consumer . . . apparel is a very specialized science, in which he has no experience."*fn37 Furthermore, Defendant argues, while Mr. Rosen authored an article referencing flame-resistant treatments for consumer apparel, the discussion of such treatments in that article occurred in only one sentence.*fn38

While Plaintiff's memorandum of law contains some general argument about Mr. Rosen's qualifications to testify as an expert on "the issues of flammability [of clothing]," that memorandum of law contains no argument on the distinct issue of Mr. Rosen's qualifications to testify as an expert on the use of flame retardants on consumer apparel.*fn39 Similarly devoid of any specific refutation of Defendant's argument as to Mr. Rosen's qualifications in this specific subject area is the "affidavit" of Plaintiff's counsel, which contains only a conclusory and off-topic argument that "[t]he opinion of Meyer Rosen . . . that the garment lacked sufficient flame retardant is scientifically valid. His opinion squares with the facts in evidence. It is not based on bogus science. If the garment was adequately manufactured to minimize the danger upon contact with heat or flame, how did the event happen?"*fn40 Not even the affidavit of Mr. Rosen contains any assertions specifically refuting Defendant's argument that Mr. Rosen is not qualified to testify as an expert regarding the subject of the use of flame retardants on consumer apparel.*fn41

"Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3). Failure to oppose one of the legal arguments advanced by a movant on a motion to exclude expert testimony shall be deemed "consent" to exclusion based on that legal argument.*fn42

Because Plaintiff has "consented" to Defendant's argument, the only remaining issue is whether Defendant has met its burden "to demonstrate entitlement to the relief requested" through that argument. A review of whether a movant has met its burden "to demonstrate entitlement" to the relief requested under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion requesting such relief.*fn43

Here, after careful consideration, I find that Defendant's argument is, at the very least, facially meritorious. The application of flame retardant chemicals to consumer apparel appears indeed to be a specialized science, one that is somewhat distinct from the more general subject of the flammability of clothing (a subject on which Mr. Rosen is also not qualified to testify as an expert).*fn44 Furthermore, based on the current record, it appears that Mr. Rosen lacks sufficient "knowledge, skill, experience, training, or education" in that specialized science, most significantly in the application of flame retardant chemicals to consumer apparel. His curriculum vitae is devoid of any clear indication of such specific education or experience.*fn45

In addition, his affidavit is devoid of any such clear indication.*fn46 Finally, his deposition is devoid of any such clear indication.*fn47 For example, in his deposition, Mr. Rosen testified that he has never "done any consulting work for an entity of any kind that manufactures wearing apparel," nor has he done any consulting work for any chemical companies that provide flame retardants for consumer apparel.*fn48

Even if I were to treat Defendant's motion as "contested" on this issue, I would reach the same conclusion. Granted, Mr. Rosen testified, in his deposition, that he "wrote an article for [a] specialty chemical magazine[] in the United Kingdom on flame retardant chemicals and interviewed experts from the Consumer Product Safety Commission, manufacturers of flame retardant chemicals."*fn49 For the sake of brevity, I will set aside the issue of whether or not the Consumer Product Safety Commission (a federal agency) manufactures flame-retardant chemicals, and the issue of whether or not "interviewing" experts qualifies one to testify as an expert in federal court. The problem with Mr. Rosen's testimony is that he did not testify that he interviewed experts at companies that applied fire-retardant chemicals to consumer apparel, or, more importantly, that his interviews concerned the subject of applying fire-retardant chemicals to consumer apparel. Indeed, the title of the article that Mr. Rosen published after the interviews (which I can find nowhere in the record) suggests that the article had to do with the flame-retardant market in general, and not with regard to the specific subject of applying fire-retardant chemicals to consumer apparel. (Dkt. No. 44, Part 41, at 6 [Curriculum Vitae of Meyer Rosen, listing article entitled, "Technologies Grow Flame Retardant Market," published in Specialty Chemicals Magazine in England in November of 2001].)

In addition, Mr. Rosen testified that he has "written an article and interviewed many people for Chemical Market Reporte[r], which is a trade publication on types of treatments that are used for fabrics in several different market areas."*fn50 However, that article, published in April of 1998 in the Chemical Market Reporter, mainly regards the market for producing and applying dyes to textiles.*fn51 It does not regard the application of fire-retardant chemicals to consumer apparel, much less to 100% polyester consumer apparel. Indeed, the article mentions flame retardants only four times.*fn52

Mr. Rosen also testified that he has consulted "with" (as opposed to consulting "for") "a half-dozen or more" companies that manufactured flame-retardant chemicals.*fn53 Mr. Rosen explained that, by the term "consulted with," he meant "talk[ing] to laboratory managers[] [and] technical personnel, inquiring more deeply than what might be in literature about how things work, [and] looking at patents that they have and the like."*fn54 However, Mr. Rosen acknowledged that, with regard to the issues in the current litigation (including the issue of the use of flame retardants on consumer apparel), he has not "consulted with" any such company.*fn55 Moreover, I can find no portion of the current record in which he has identified those companies, described when he consulted "with" them, or even clearly indicated that such consultation regarded the subject at hand--the application of flame-retardant chemicals to consumer apparel.*fn56

Finally, Mr. Rosen has testified that he worked for 26 years at Union Carbide, helping it, among other things, manufacture chemicals used to flame retard "carpet backing" and "seat cushions" of automobiles, and "backs of drapery."*fn57 However, again, such things are not the application of flame retardants to consumer apparel, which I have found to be a subject of some specialization and distinctiveness, as discussed above.

I note that, in the Wilson case discussed above in Part II.A.1. of this Decision and Order, the First Circuit excluded similar testimony by a chemist under analogous circumstances, that is, where a proffered expert's knowledge with regard to the application of flame retardants to consumer apparel was sorely lacking.*fn58 I note also that, in October of 1999, in the case of Gurwitz v. Wal-Mart, the district judge ruled that "before starting [what] seems to be a second career as an expert witness, [Mr. Rosen] had nothing whatever to do with . . . flame retardant garments . . . ." See Gurwitz v. Wal-Mart, 97-CV-5678, Order at 10 (E.D.N.Y. filed Oct. 25, 1999). I find no sufficient "knowledge, skill, experience, training, or education," acquired by Mr. Rosen since October 1999, that warrants a finding that he is now so qualified on the subject of the application of fire retardants to consumer apparel. To the extent that Plaintiff relies on the aforementioned April 1998 article published by Mr. Rosen in the Chemical Market Reporter, I note that the article was published before the district judge in the Gurwitz decision reached his conclusion about Mr. Rosen's lack of qualifications regarding flame retardant garments.

For all these reasons, I find that Mr. Rosen lacks sufficient education and experience to qualify him to testify as an expert on the subject of the application of fire retardants to consumer apparel.

3. Qualifications Regarding Warnings on Consumer Apparel

Mr. Rosen's report concludes that Defendant "had a duty to warn on the label of the subject garment that if exposed to high heat or flame . . . it would certainly melt and cause severe burns to the skin . . . ."*fn59 Defendant argues that Mr. Rosen lacks the necessary qualifications to form a reliable opinion regarding the use, placement, and composition of warnings on consumer apparel.*fn60 More specifically, Defendant argues that Mr. Rosen's curriculum vitae is completely silent with respect to any such qualifications, and that his only such "qualifications" consist of Mr. Rosen's sporadic collaboration and discussion with a colleague regarding warnings, and his having read some publications that he could not identify.*fn61

Plaintiff's memorandum of law begins its refutation of Defendant's argument by conceding that Mr. Rosen has "less" experience with warnings than he does with flammable textiles.*fn62 This is telling, in light of my earlier finding that Mr. Rosen lacks expertise on the general subject of flammable fabrics. (See, supra, Part II.A.1. of this Decision and Order.) Plaintiff's memorandum of law goes on to argue that Mr. Rosen's "expertise on warnings is based upon the accumulation of his testing experience, his knowledge of clothing and flammability, and his reading of various articles such as [a two-page "Safety Alert" published by the Consumer Product Safety Commission]."*fn63 However, the memorandum fails to specify any other such articles read, it fails to specify what "testing experience" Mr. Rosen has ever done (if any) with regard to warnings, and it fails to explain how Mr. Rosen's "knowledge of clothing and flammability" involves the use, placement, and composition of warnings in particular.

Rather than fleshing out this rather conclusory argument is his memorandum of law, Plaintiff relies on an "affidavit" of Plaintiff's counsel to develop this legal argument.*fn64 In that affidavit, Plaintiff's counsel begins his refutation of Defendant's warnings argument by "refer[ring] the Court to the Affidavit of Meyer Rosen in support of his position herewith."*fn65

Counsel then presents a series of conclusory assertions in support of Plaintiff's argument, failing to identify any specific qualifications, possessed by Mr. Rosen, to testify as an expert on the issue of the use, placement, and composition of warnings on consumer apparel:

The plaintiff's expert Meyer Rosen based his opinions upon facts actually in evidence as well as his professional and thorough testing of the exemplar garment and his personal conversations with Douglas and Margaret Topliff. . . . [Meyer Rosen has] appropriate credentials to opine on the issue[] [of the use, placement and composition of warnings on consumer apparel]. A few more articles written or seminars attended may be ample fodder for cross-examination, but in the end the plaintiff's expert offers a valid scientific explanation on these issues, as will be demonstrated in the plaintiff's memorandum of law . . . . The plaintiff's expert Meyer Rosen is qualified to testify on the issues of appropriate warnings and was examined on this issue by defense counsel on June 12, 2006. (See Plaintiff's Exhibit "I", Rosen's testimony.) . . . . Mr. Rosen is perfectly capable of reading those warnings, and no special degree, seminar or article of opinion would be required to justify his testimony to the effect that proper warnings are not only preferred but required.*fn66

This last argument--that "no special degree, seminar or article of opinion" is required for Mr. Rosen to be qualified to testify as an expert on the subject at issue--illustrates what I believe is the crux of Plaintiff's argument, namely, that Mr. Rosen does not need any qualifications to testify as an expert on the subject at issue. I reject this argument. Whether or not Plaintiff needs an expert to testify at trial in order to prevail on his failure-to-warn claim is a different issue than whether such an individual, in order to testify as an "expert," must possess the relevant qualifications. Clearly, he must. See Fed. R. Evid. 702 (permitting testimony from "a witness qualified as an expert by knowledge, skill, experience, training, or education") [emphasis added]. Indeed, courts have routinely rejected expert testimony on warnings where the proffered "expert" lacked the necessary qualifications. See, e.g., McCullock v. H.B. Fuller Co., 981 F.2d 656, 657-658 (2d Cir. 1992) (affirming district court ruling that plaintiff's proffered expert did not possess the required qualifications to testify as an expert on the subject of warning labels for hot melt glue); Patterson v. Cent. Mills, 64 F. App'x 457, 462 (6th Cir. 2003) (affirming district court ruling that plaintiff's proffered expert did not possess the required qualifications to testify as an expert on the subject of written flammability warnings for clothing); Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998) (affirming district court ruling that plaintiff's proffered experts did not possess the required qualifications to testify as experts on the subject of warnings for ceramic products).*fn67

Although I have no duty to sua sponte scour the record in this case for further argument in support of Mr. Rosen's qualifications with regard to warnings, I have carefully reviewed his affidavit, especially those paragraphs in which he presents assertions in refutation of Defendant's argument that he is not qualified to testify as an expert with regard to the use, placement, and composition of warnings on consumer apparel.*fn68 Briefly summarized, he asserts that his qualifications on the subject consist of the following: (1) the fact that, "[o]ver the past 14 years," he has received "extensive training" with regard to warnings by Dr. Harold Tanyzer through working with him on "numerous litigation matters" involving warnings, "many of [which] . . . involved flammability warnings on textiles"; and (2) the fact that, during this time period, Mr. Rosen has "review[ed] . . . literature on warnings."*fn69

What particular "litigation matters" has Mr. Rosen worked on with Dr. Tanyzer? Which of those matters involved flammability warnings on textiles? How often, and when, did that work occur? And what exactly did Mr. Rosen do? Mr. Rosen does not provide this information--not in his affidavit, his curriculum vitae, or his deposition testimony.*fn70 To the extent that Mr. Rosen's "experience" regards warnings other than those placed on consumer apparel, I question whether such "experience" would qualify him to testify as an expert on the subject of the use, placement, and composition of warnings on consumer apparel. I note that, in Patterson v. Central Mills, the Sixth Circuit affirmed the district court's exclusion of the proffered expert testimony of one of Mr. Rosen's current colleagues at Inter-City Testing & Consulting Corp., Gordon Damant, on the issue of garments warnings, where Mr. Damant's only experience with flammability warnings dealt with warnings placed on mattresses and furniture. See Patterson, 64 F. App'x at 462.*fn71

And what "literature" has Mr. Rosen read on the subject of warnings that supposedly qualifies him as an expert? In his affidavit, he testified that this literature included the following:

(1) a warning used on an L.L. Bean article of clothing; (2) a five-page "article" entitled, "If You Make, Import, Distribute or Sell Clothing: An Important Safety Message About the Flammability Hazard of Your Products," prepared in December of 2004 by the National Association of Fire Marshals, (3) a three-page article entitled, "Synthetic Clothes Off Limits to Marines Outside Bases in Iraq," reputedly published on the United States Department of Defense website, and (4) a five-page "article" entitled, "Frequently Asked Questions," prepared by SALTA International, Inc., a textile fabrics and apparel manufacturing company, although Mr. Rosen characterized this entity as an "association."*fn72 In his deposition, he was unable to identify any specific such literature, other than (1) a "brown colored" book, (2) a seven-page article entitled, "Facts About Fabric Flammability" published by the U.S. Department of Agriculture and Iowa State University in July of 2003, (3) an eight-page article entitled, "Nightwear and Fire: A Guide to Nightwear (Safety) Regulations" published on an undetermined date by the United Kingdom Department of Trade and Industry, ...


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