The opinion of the court was delivered by: John T. Curtin United States District Judge
By order of Chief United States District Judge William M. Skretny dated November 5, 2010 (Item 72), this matter has been reassigned to the undersigned for all further proceedings.
In this case, plaintiff Linda Morton seeks damages for injuries allegedly suffered while operating an elevator at Women and Children's Hospital of Buffalo ("Children's Hospital"), her place of employment, on August 30, 2004. The action was initiated in New York State Supreme Court, Erie County, by the filing of a summons and complaint on May 9, 2007 (Item 1, Ex. A), and was removed to this court by defendant Otis Elevator Company ("Otis") on the basis of diversity of citizenship of the parties. Following extensive fact and expert discovery, defendant filed a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint (Items 57-4 or,in the alternative, to preclude the testimony of plaintiff's designated liability expert for failure to meet the standards for admissibility under Rule 702 of the Federal Rules of Evidence and the Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Item 57-5).
For the following reasons, defendant's motion for summary judgment is granted in part and denied in part. Defendant's motion to preclude expert testimony is denied.
The following facts are adapted from the materials submitted in connection with the pending motions. On August 30, 2004, plaintiff was working at Children's Hospital as a Nursing Assistant, assigned to the 6:00 a.m. to 2:00 p.m. shift in the Pre- and Post-Op Surgical Unit located on the ninth floor of the hospital wing known as the Tanner Building. At approximately 9:00 a.m. on that day, plaintiff was transporting a child patient from the ninth floor to the surgery ward on the second floor, accompanied by the patient's mother. The patient was on a wheeled bed, or "gurney," with a separate IV pole on wheels. Plaintiff called the elevator referred to as "Tanner 9- Surgical Elevator #5" (the "Tanner #5 Elevator") which is a key-operated elevator reserved for use by hospital staff for transportation of surgical patients.
The Tanner #5 Elevator was originally installed in 1955, and was maintained by Otis pursuant to a contract with Kaleida Health Services, Children's Hospital's corporate parent. See Item 57-3 (Deft. Local R. 56.1 Statement), ¶¶ 3-4; see also Item 57-9 (Otis Maintenance Contract, effective March 6, 2003). On August 25, 2004, five days prior to the incident alleged in the complaint, Otis installed a Lambda 3D door protection device on the Tanner #5 Elevator, comprised of an interconnected series of infrared light beams across the elevator threshold which are triggered upon interruption causing the elevator doors to immediately stop and retract. Item 57-3, ¶¶ 5, 6.
Plaintiff testified at her deposition that when the Tanner #5 Elevator arrived at the ninth floor on the day of the incident, the elevator door did not open right away. She stated that she heard a "clanking, popping kind of noise" coming from the top of the elevator car. She used her key again, and the door opened. She noticed that the elevator floor was approximately three inches below the hallway floor. She testified that she had noticed a similar mis-leveling of this same elevator earlier in the day, and had brought it to the attention of her supervisor and other hospital personnel. She was told that an order had been placed for someone from Otis to come and take a look at it. She also testified that she had experienced mis-leveling of this same elevator to a lesser degree on prior occasions, but she did not report this to anyone. Item 57-21 (Pltff. Dep.), pp. 51-58; 60-66.
Plaintiff testified that when the elevator door opened on the ninth floor, the patient's mother stepped in first. Plaintiff began to push the gurney slowly into the elevator while holding the IV pole with her right hand. Suddenly the elevator door began to close, striking the pole. The door reopened, and plaintiff was able to set the IV pole down while continuing to push the gurney into the elevator. However, according to plaintiff, the elevator door then "slammed" into the gurney, "crushing" plaintiff's left hand between the side rail of the gurney and the elevator door jamb. Id. at 71-74; 84-90.
When the door reopened, plaintiff was able to maneuver the gurney into the elevator. She used her key to close the door, but she heard the clanking, popping noise again, and the door stayed open. She used her key a second time, and this time the doorclosed and the elevator traveled to the second floor. She used her key to open the door on the second floor, but heard the same noise as before, and she had to use the key again to get the door to open. She left the elevator door locked in the open position, and transported the patient to the surgery unit where she reported the incident to hospital personnel. Id. at 90.
As reflected by Otis Elevator's service and maintenance records, a service call to Otis was placed on September 1, 2004-- two days after the incident occurred-- indicating that the Tanner #5 Elevator was stuck on the ninth floor, with the doors closed, and was not responding to calls. The service record indicates that Otis mechanic William Schaber responded to the call at 3:15 p.m. on September 1, and replaced a chain on the hoistway door. Item 69-10, p. 29.
In her complaint, plaintiff alleges that the "serious and permanent injury"*fn1 to her hand was caused by "negligence and lack of care on the part of defendant," consisting of the following: [n]egligent design, construction, manufacturing and/or installation of the . . . elevator; failure to properly maintain the subject elevator in a reasonably safe operating condition; failure to adequately inspect and maintain the subject elevator; failure to warn Plaintiff of the hazards associated with the subject elevator; failure to repair a known and defective condition existing thereat; carelessly and negligently failing to inspect the elevator and maintain said elevator to insure it complied with all applicable codes.
Item 1, Ex. A, ¶ 9. Following answer and removal, and after an unsuccessful attempt at early mediation, the parties engaged in substantial discovery efforts, including the depositions of plaintiff and several employees of both Children's Hospital and Otis Elevator. This was followed by designation and depositions of expert witnesses, including plaintiff's liability expert James Filippone, P.E., a licensed mechanical engineer employed by the Port Authority of New York and New Jersey, and defendant's liability expert William H. Woolford, a licensed Qualified Elevator Inspector ("QEI"). See Item 57-2 (Atty. Decl.), ¶ 4.
Mr. Filippone and Mr. Woolford both inspected the Tanner #5 Elevator on June 12, 2008, and both reviewed the available information about the incident, including Otis's maintenance contract, manuals, and work records, as well as the deposition transcripts, documents, and other evidence produced during discovery in this action. In his report dated October 7, 2009, Mr. Filippone expressed the following opinion as to what caused the malfunction of the Tanner #5 Elevator door on August 30, 2004:
The door controller control box chain was excessively worn/slack before it broke causing it to skip/jump over the sprocket(s). When this happened, the chain would make a clanking/popping noise, which is exactly what [plaintiff] heard before and after her incident. This would cause the door operator control box switches (including the door open limit) to get out of sync with the actual position of the doors. This would cause the door operation to malfunction, most likely on an intermittent basis. . . . .
It is the opinion of the writer, within a reasonable degree of engineering certainty, based on the writer's observations, experience, and engineering analysis of the information available, that the primary cause of the incident was improper maintenance by Otis. Item 57-30, p. 7.
In his report dated January 8, 2010, Mr. Woolford countered that Mr. Filippone's conclusions about the condition of the door operator chain as the cause of the door malfunction were "just pure speculation," with no supporting evidence. Item 57-33, p. 3. According to Mr. Woolford:
It is my conclusion and opinion that the elevator door operator and door protection device were functioning properly on 8/30/2004. There are no records of any problems before or after this alleged incident. The fact that the elevator continued with no problems until a call for service was placed 2 days later supports that opinion. Someone would surely have observed a problem with the door operation in the process of moving patients from the 9th floor to the 2nd floor. A loose chain or worn sprocket will not repair itself if in fact . . . it happened. This is pure speculation as there is no record of faulty operation of the elevator to support this. . . . .
It is my experience and opinion based on the records and information I have reviewed, the subject elevator was maintained and repaired properly. Id. at p. 4.
Defendant has now moved for summary judgment dismissing the complaint, based on the following grounds:
1. The available evidence shows that Otis had no actual or constructive notice of any mis-leveling or door malfunction problems with the Tanner #5 Elevator prior to the accident; to the contrary, defendant has produced substantial evidence showing that it performed several routine maintenance surveys and inspections on the Tanner #5 Elevator in the weeks preceding the incident ...