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Domingo Rodriguez, et al v. Athenium House Corp.

March 4, 2013

DOMINGO RODRIGUEZ, ET AL., PLAINTIFFS,
v.
ATHENIUM HOUSE CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain United States District Judge

MEMORANDUM OPINION AND ORDER

In this action, Plaintiffs Domingo Rodriguez ("Plaintiff" or "Rodriguez") and Jennifer Rodriguez (collectively, "Plaintiffs") sue Defendants Athenium House Corp. and Andrews Building Corporation (collectively, "Defendants") to recover damages for personal injury and loss of consortium. Rodriguez's injuries were allegedly sustained when a bulletin board hanging in the lobby of Defendants' apartment building fell and struck him on the head and back. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332.

Before the Court are two motions - 1) Defendants' motion to preclude the testimony of Michael Kravitz ("Kravitz"), a consulting engineer who has been designated by Plaintiffs as an expert witness; and 2) Plaintiffs' motion to preclude the testimony of Robert Cargill ("Cargill"), a biomechanical engineer who has been designated by Defendants as an expert witness. The Court has reviewed carefully all of the parties' submissions and, for the following reasons, Plaintiffs' motion to preclude is granted in part and denied in part, and Defendants' motion to preclude is denied in its entirety.

BACKGROUND

Kravitz Report

Kravitz is a licensed civil engineer who received a Bachelor of Civil Engineering degree from the City College of New York in 1966. In his expert report, Kravitz relies upon several sources of information, including the deposition testimony of multiple witnesses, building records, and observations and measurements made during two visits to the scene of the accident, in determining why the bulletin board fell from the wall. After conducting a static and dynamic analysis of the forces on the board, Kravitz formulated hypotheses as to the means and sufficiency of the bulletin board's installation at the time of the accident, and ultimately opined that the bulletin board was not properly anchored to the drywall. Kravitz stated that "[t]his type of bulletin board does not normally fall off the wall if properly installed," that the bulletin board was not installed according to the manufacturer's instructions, and that there were safer and more reliable methods of affixing the board to the drywall. Kravitz's ultimate conclusion is that, "[n]o matter how the bulletin board was actually affixed to the wall in this case it was not affixed in accordance with good and accepted construction, maintenance, and engineering standards and practices."

Cargill Report

Cargill is a licensed professional engineer who received a Bachelor of Science degree in biomedical engineering from Rensselaer Polytechnic Institute in 1989, and Master of Science and Ph.D. degrees in bioengineering from the University of Pennsylvania in 1991 and 1994, respectively. Cargill does not possess a medical degree. In formulating his expert report, Cargill relied on several sources of information, including the deposition testimony of several witnesses, Rodriguez's medical records, and observations and measurements made during a visit to the site of the accident.

After conducting a static and dynamic analysis of the forces on the bulletin board, Cargill concluded that the cause of the board's fall was unknown. After inspecting damage to the three corners of the bulletin board and other miscellaneous scratches, Cargill further concluded that this damage "[could not] be definitively associated with the subject incident."

Cargill next analyzed the magnitude and direction of the bulletin board's impact on Rodriguez's head and back, and concluded that "the potential head acceleration experienced by Mr. Rodriguez was well below accelerations associated with mild traumatic brain injury and was within the head accelerations measured in vigorous everyday activities." In support of this opinion, Cargill cited several articles related to head acceleration, and further concluded that "[t]here was no mechanism for Mr. Rodriguez to sustain a closed head injury or mild traumatic brain injury in this incident."

With respect to Rodriguez's medical records, Cargill stated that Rodriguez's CT scans did not reveal any extra-cranial fluid collections or large contusions. Cargill also noted that imaging studies of Rodriguez's lumbar spine did not indicate any acute changes, fractures, subluxations, or bony damage, and that Rodriguez's MRI studies noted multi-level degenerative changes. Cargill concluded that any contact between the bulletin board and Rodriguez's back would have been "glancing in nature" and that "there was no mechanism for the subject incident to cause or exacerbate lumbar spine structural pathology."

DISCUSSION

Rule 702 of the Federal Rules of Evidence provides that:

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 ...


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