The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This diversity product liability case is before the Court on Defendants' motion (Docket No. 27) to barr the testimony of David Quesnel, Ph.D., Plaintiff's expert witness, because of a lack of testing. For the reasons stated below, the Court denies the motion.
On November 8, 2002, Plaintiff was injured by hot asphalt that sprayed him from what he claims was a defective spigot on a Lugger, an insulated tank for the temporary storage and distribution of roofing asphalt. Plaintiff alleges that when he turned the spigot on the Lugger, the entire spout turned toward him, and poured hot asphalt, at about 300° F, onto him, filling his work boots and causing him severe burns. Defendants are the designers, manufacturers, assemblers and marketers of the allegedly defective Lugger.
Plaintiff is bringing three causes of action under New York law: (1) strict product liability; (2) breach of warranty; and (3) negligence. Dr. Quesnel wrote in his report that "[s]everal alternate designs are available which would have prevented this accident." (Quesnel Report, at 3.) He proposes four: a left-handed screw thread for either the valve mounting or the valve opening handle; the use of a jam nut and ordinary threads with a sealant; an integral flange on the valve body bolted to the tank; and bolted-on braces, a design "already in service in the field." (Id., at 3.)
Defendants are moving to preclude testimony by Plaintiff's expert on the ground that he has failed to test his hypothesis that the spout could have been prevented from turning, thus made safer, through alternative designs. Defendants argue that Mr. Quesnel confines his expert opinion to the issue of design defect but, as argued herein, that opinion is utterly unsupported by any indicia of reliability other than Mr. Quesnel's self-qualification. It is exactly the type of testimony that is intended to be barred by Federal Rule of Evidence 702 and Daubert.
(Def.s' Mem. of Law, at 1-2.) Defendants plan to offer their own expert's testimony. They intend to call Lester Engel, P.E., who engaged in testing "designed to mimic the accident dynamics" described by Plaintiff. Defendants contend that Mr. Engel, [u]sing an identical lugger and wrench (which was capable of measuring torque) and armed with measurements from the incident lugger, it was learned that 250 ft-lbs of torque were necessary to screw the spigot in to the same depth as that achieved by Mr. Robinson. To back the spigot out 180 degrees (as described by Mr. Robinson) required 150 ft-lbs of torque. Once set in that position, to rotate the cold spigot required 125 ft-lbs. (Engel Report, p. 6)
(Def.s' Mem. of Law, at 5-6.)
Federal Rule of Evidence 702 provides as follows:
Rule 702. Testimony by Experts
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 (2000). The Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 ...