United States District Court, N.D. New York
ARGONAUT INSURANCE COMPANY and GREAT AMERICAN INSURANCE COMPANY, as subrogees of the TOWN OF DANNEMORA, Plaintiff,
SAMSUNG HEAVY INDUSTRIES CO. LTD, SAMSUNG LIFE INSURANCE SEOCHO, TOWER, VOLVO CONSTRUCTION, EQUIPMENT NORTH AMERICA, INC., Defendants
[Copyrighted Material Omitted]
For Plaintiffs: Matthew F. Noone, Esq., OF COUNSEL, COZEN O'CONNOR, Philadelphia, Pennsylvania.
For Plaintiffs: Nelson E. Canter, Esq., OF COUNSEL, CANTER LAW FIRM P.C., White Plains, New York.
For Defendants: Thomas D. Keleher, Esq., OF COUNSEL, BOND, SCHOENECK & KING, PLLC, Syracuse, New York.
Mae A. D'Agostino, U.S. District Judge.
MEMORANDUM-DECISION AND ORDER
Presently before the Court are plaintiffs' motions to exclude the opinions and testimony of defendants' experts (Dkt. Nos. 33, 35 and 36) and defendants' motion to exclude the opinions and testimony of plaintiffs' expert and for summary judgment and dismissal of plaintiffs' design defect, failure to warn and negligence causes of action (Dkt. No. 34).
PROCEDURAL HISTORY AND BACKGROUND
On January 1, 2010, a fire occurred at a garage owned by the Town of Dannemora Highway Department (the " Town" ). In the garage, the Town kept three trucks manufactured by International Trucks (Truck Nos. 1, 8 and 14), which were used for snow and ice removal and a SL 12-2B (" Samsung Loader" ) which was used to load rock salt onto the plow trucks. At 4:30 a.m. on January 1, 2010, Howard " Pete" Barber (" Barber" ) (the Town Highway Superintendent) arrived at the garage to prepare for snow removal. The remaining employees arrived around 5:00 a.m. and started the snow plow trucks and Samsung Loader to allow the vehicles to warm up before leaving on their respective routes. Barber drove the Samsung Loader and loaded each truck with salt. Barber then left the Samsung Loader on the loading ramp outside of the garage while the employees completed their snow removal routes. Barber left the garage around 7:30 a.m., prior to the employees returning.
When the employees returned, Floyd " Rusty" Guerin drove the Samsung Loader from the loading ramp into the garage and Richard Dashnaw followed with Truck 14, both through the south end door.
Shortly after 8:00 a.m., Guerin called Barber to advise that the employees completed their routes, returned to the garage and were leaving for the day. None of the employees recalled any problems with the operation of the Samsung Loader that day. At approximately 9:10 a.m., the owner of a neighboring property saw black smoke emanating from the garage and notified the fire department and Barber. Barber drove to the garage to find smoke and flames.
Richard Daus (" Daus" ), a Fire Investigator with the Office of Fire Prevention and Control (" OFPC" ) (a statutory office within the New York State Division of Homeland Security and Emergency Services), conducted an investigation into the cause and origin of the fire as part of his duties. Daus arrived at the scene at approximately 4:52 p.m. and supervised other investigators from the New York State Office of Fire Prevention and Control and Clinton County over a two day period beginning on January 1, 2010 and ending on January 2, 2010.
On December 15, 2010, plaintiffs commenced the within action as subrogee of the Town of Dannemora seeking to recover the proceeds of the insurance policies that each company paid to the Town as a result of the fire. Plaintiffs allege that the fire started when the Samsung Loader's " battery cable ground faulted, causing an arcing event and ignition of surrounding combustible materials" . Plaintiffs asserted three causes of action: (1) negligent design and manufacture; (2) failure to warn; and (3) strict liability. (Dkt. No. 1).
I. PLAINTIFFS MOTIONS TO EXCLUDE EXPERTS
Plaintiffs filed three motions seeking to exclude defendants' expert, Richard T. Daus, James F. Hahn, Jr. and Joseph Michael Miles. Plaintiffs contend that the aforementioned expert testimony should not be admitted at trial because it would fail to comport with the standards set forth in Fed.R.Evid. 702 and Daubert v. Merrell-Dow, Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants argue that, " a mere disagreement between experts, such as this, cannot form the basis for exclusion of testimony" and while, plaintiffs have identified items for cross-examination, " those items are matters that go to the weight, not the admissibility of the opinions" .
A. Standard of Review
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. That Rule provides as follows:
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.
In reviewing the admissibility of expert testimony, " the district court has a 'gatekeeping' function under Rule 702 - it is charged with 'the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v. Nat'l R.R. Passenger
Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert, 509 U.S. at 597). The rule set forth in Daubert applies to scientific knowledge, as well as technical or other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
As the Second Circuit has explained,
[i]n fulfilling this gatekeeping role, the trial court should look to the standards of Rule 401 in analyzing whether proffered expert testimony is relevant, i.e., whether it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Next, the district court must determine whether the proffered testimony has a sufficiently reliable foundation to permit it to be considered. In this inquiry, the district court should consider the indicia of reliability identified in Rule 702, namely, (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case. In short, the district court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
Amorgianos, 303 F.3d at 265 (internal alterations, quotations, and citations omitted). The court must also consider the fact that " experience in conjunction with other knowledge, skill, training or education . . . [may] provide a sufficient foundation for expert testimony," and " [i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." Advisory Committee Notes, 2000 Amendments, Fed.R.Evid. 702; see also Kumho Tire, 526 U.S. at 156 (" [N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience" ).
" In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions." Amorgianos, 303 F.3d at 266 (citation omitted). " In deciding whether a step in an expert's analysis is unreliable, the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Id. " A minor flaw in an expert's reasoning or a slight modification of an otherwise reliable method will not render an expert's opinion per se inadmissible." Id. " 'The judge should only exclude the evidence if the flaw is large enough that the expert lacks good grounds for his or her conclusions.'" Id. (quotation and other citation omitted).
As the courts and Advisory Committee have made clear, " the rejection of expert testimony is the exception rather than the rule." Fed.R.Evid. 702, Advisory Committee's Note; see also E.E.O.C. v. Morgan Stanley & Co., 324 F.Supp.2d 451, 456 (S.D.N.Y. 2004); U.S. Info. Sys., Inc. v. Int'l Bhd. of Elec. Workers Local Union No. 3, 313 F.Supp.2d 213, 226 (S.D.N.Y. 2004). " This principle is based on the recognition that 'our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony.'" Melini v. 71st Lexington Corp.,
2009 WL 413608, at *5 (S.D.N.Y. 2009) (quoting Amorgianos, 303 F.3d at 267).
However, " when an expert opinion is based on data, methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266; accord Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005). Furthermore, " it is critical that an expert's analysis be reliable at every step." Amorgianos, 303 F.3d at 267. Of course, " the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions." Id. at 266 (citing Daubert, 509 U.S. at 595). Nevertheless, " conclusions and methodology are not entirely distinct from one another." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Accordingly, " [a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Joiner, 522 U.S. at 146.
B. Richard T. Daus
Plaintiffs argue that Daus' proposed testimony should be excluded because: (1) Daus failed to describe his methodology; (2) Daus misapplied the principals outlined in the National Fire Protection Association's (" NFPA" ) 921: Guide for Fire and Explosion Investigations; (3) Daus failed to generate more than one hypothesis; and (4) Daus failed to gather sufficient data regarding the cause of the fire.
" NFPA 921 is a peer review and is generally accepted in the fire community." Allstate Ins. Co. v. Gonyo, 2009 WL 1212481, at *6 (N.D.N.Y. 2009) (citation omitted). In Gonyo, the court discussed NFPA 921:
NFPA 921's goal is to provide guidance to the investigators which is based upon accepted scientific principles. Chapter Four outlines a basic scientific methodology, a systematic approach to investigating fires. " With few exceptions, the proper methodology for a fire or explosion investigation is to first determine and establish the origin(s), then investigate the cause: circumstances, conditions, or agencies that brought the ignition source, fuel, and oxidant together." Such investigation requires an examination of the scene, interviewing witnesses, and testing the results. The empirical data collected, which is " based on observation or experience and is capable of being verified," is subject to an analysis premised upon inductive reasoning.
Id.; see also
Royal Ins. Co. of Am. v. Joseph Daniel Constr., Inc., 208 F.Supp.2d 423, 426-27 (S.D.N.Y. 2002) (recognizing the NFPA 921 as a generally accepted standard in fire investigations). An analysis that includes a physical examination of the scene, interviews, photographs of the scene, an examination of the evidence at the scene, wires and an on-site visit is consistent with the scientific methods underlying fire incident investigation as set forth ...