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Hilaire v. Dewalt Indus. Tool Co.

United States District Court, E.D. New York

October 8, 2014


Order Filed: September 12, 2014

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For Cleant Hilaire, Plaintiff: Pat J. Crispi, Keogh Crispi P.C., New York, NY.

For Dewalt Industrial Tool Co., Black & Decker (U.S.) Inc. improperly sued as Dewalt Industrial Tool Co., Defendant: Michael Kim Berman, LEAD ATTORNEY, Michael K. Berman, Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY.

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I. Leo Glasser, United States District Judge.

Pending before the Court are objections to an extensive Report by Magistrate Pollak and her Recommendation (R& R), which that Report essentially compelled that the defendant's motion for summary judgment and to preclude the testimony of the plaintiff's proposed liability expert be granted.

The event that gave rise to this action is the severance of a portion of the plaintiff's left hand while he was attempting to cut wood using a table saw manufactured by the defendant. He alleges that the table saw was defectively designed and did not contain adequate warnings and that his serious injuries were caused entirely by the negligence of the defendant.

Sought to be excluded is the testimony of one " liability expert" proposed to be offered by the plaintiff who will opine that the saw was defectively designed and that warnings of potential danger inherent in its use were inadequate.

In a motion to preclude an expert from testifying, a court plays the role of a gatekeeper -- determining whether he should be permitted to pass through the testimonial

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gate or whether that gate should remain closed to him. In making that determination, the court is guided by two seminal cases, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The rest (thousands of cases which followed in their wake), is commentary. Those cases teach that the discharge of the gatekeeping responsibility requires an answer to two questions: (1) is the proposed expert qualified to testify by virtue of his specialized " knowledge, skill, experience, training or education?" Fed. R. Ev. 702; and (2) if deemed qualified, is his testimony reliable and will it assist the fact finder in deciding the issue? Both questions must be answered in the affirmative if the testimonial gate is to be opened. Magistrate Judge (MJ) Pollak's 48 page R& R is a virtual monograph on the law governing that determination in all of its nuances.

The facts to which the law was to be applied were meticulously distilled from the report of the testimony the proposed expert, Mr. Lewis Barbe, would give and from his deposition. A summary of the expert's qualifications gleaned from his resumé is as follows:

He has a Bachelor of Science degree from the Illinois Institute of Technology in Fire Protection and Safety Engineering. He has consulted as a " licensed safety engineer" for more than 35 years. He is registered and " certified" as a safety engineer in several states and by a number of Boards identified as C.S.P., C.P.S.M., C.H.C.M., H.S.P. with little or no information as to the qualifications for membership in or function of them. He is employed by 3 companies as a " Risk Manager" in one, and a " Safety Engineer" in another. Whether he has responsibility for designing products or for assessing products for safety and performance is unclear. His resumé reflects that he has taught safety engineering and compiled a reference manual for OSHA. He could remember only one article he wrote that was published. He is a " participating member" in various professional organizations that develop safety standards for various products and industries. He stated that he is applying for a patent on a safety device to be used on table saws and portable table saws, but for reasons of confidentiality refrained from discussing its details.

He testified on deposition that he testified at approximately 100 trials, was deposed approximately 400-500 times and was unable to recall any case in which he testified for a defendant. He has no training or experience in designing table saws. He has neither lectured on nor taught courses on the design or manufacture of table saws. He never owned a table saw, only used one within the last 2 years, and never worked as a carpenter. His report concluding negligence in design and manufacture given the many safety devices and safety technology available but not used on the offending saw is confidently asserted despite his admission that he never saw a marketed table saw equipped with the safety devices and the technology he describes; nor has he ever designed table saws incorporating those safety devices. His qualifications as discerned from his resumé and deposition testimony that has any relevance to the issue in this case is extensively discussed in the R& R at pages 5-9 and 12-25. In the light of that discussion the MJ's recommendation, albeit made reluctantly, that he is " barely" qualified to testify, is magnanimously charitable.

The balance of the R& R, pages 25-47, can only be described as an incisive, logical

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analysis of the proposed expert's qualifications which compels the conclusion that they are patently inflated and that his proposed testimony is based on facts, methods and principles which are insufficient and unreliable and which will provide no meaningful help to " the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Ev. 702(a)-(c).

The R& R is, accordingly, adopted in its entirely.



Cheryl L. Pollak, United States Magistrate Judge.

On November 3, 2010, the above captioned case was removed to the Eastern District of New York from the Supreme Court of the State of New York, Queens County. In this case, plaintiff Cleant Hilaire seeks damages for personal injuries that he allegedly sustained on August 24, 2007, while operating a DW745 Heavy Duty 10" Job Site Table Saw, bearing serial number 2006 46-CT 041971 (hereinafter, the " Saw" ), during the course of his employment with Harper Design Build, Inc. (Compl.[1] ¶ ¶ 2, 9, 10 13).

By Notice of Motion dated February 21, 2014, defendant DeWalt Industrial Tool Co. (hereinafter, " Black & Decker" )[2] moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, and seeks to preclude the testimony of plaintiff's proposed liability expert, Lewis C. Barbe, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (See Def.'s Mem. at 1, 3).

On referral from the district court,[3] the undersigned held a Daubert hearing on May 7, 2014,[4] and submits this Report and

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Recommendation, respectfully recommending that defendant's motion to preclude the proposed expert testimony of Mr. Barbe be granted and that defendant's Motion for Summary Judgment be granted in its entirety.


A. The Accident

On August 24, 2007, plaintiff was attempting to cut a section of cabinet wood, using the DeWalt DW745 Heavy-Duty 10" Job Site Table Saw, bearing serial number 2006 46-CT 041971, when a portion of his left hand was severed by the Saw's blade. (Compl. ¶ 10; Def.'s Mem. at 1-2). At the time of the incident, plaintiff was employed by Harper Design Build, Inc. (" Harper" ) as a carpenter and he was working with the Saw at a construction site, located at 381 11th Street in Brooklyn, New York. (Compl. ¶ ¶ 8, 9). According to plaintiff, Harper had previously acquired the Saw through an authorized Black & Decker dealer. (Id. ¶ 6).

The Saw is a " portable light weight jobsite table saw," manufactured in November 2006. (Def's. Mem. at 3-4 (citing Schafebook Dep.[6] at 24-26; Def's Ex. E[7])). According to defendant, the Saw is designed to allow an operator to make a variety of cuts, including rip cuts, cross cuts, angled cuts, and non-through cuts. (Id. at 4). Defendant asserts that the Saw was designed in conformity with industry standards and includes a variety of safety features as standard equipment, including a splitter-mounted blade guard assembly, which is designed to reduce the risk that the operator will come into contact with the blade while using the Saw. (Id. (citing Schafebook Dep. at 54-55)). The Saw also includes warnings on the Saw itself and in the instruction manual. (Id. at 5 (citing Def.'s Mem. Exs. E, H)). The warnings advise the user to always use the blade guard during cutting operations. (Id. at 5). However, defendant acknowledges that certain cuts, such as non-through cuts, cannot be performed while the guard is in place. (Id.)

According to plaintiff, he is a high school graduate, with seven years of carpentry and heavy construction experience prior to the accident. (PL's Dep.[8] at 9, 31-33).

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Plaintiff testified that he had used table saws " hundreds of times" and knew that the blade guard was used to help prevent a person's hands from coming into contact with the blade. (Id. at 62-65, 67, 75-77, 95). Plaintiff also testified that when he started working for Harper, he noted that the Saw did not have the blade guard assembly in place and he was concerned about its absence. (Id. at 94-97). He read the warning labels on the Saw and in particular, read the label that stated: " Danger! Keep hands away from the blade." (Id. at 129-130; Def.'s Ex. E).

On the date of the accident, plaintiff was using the Saw, which had been placed in a makeshift table, set on top of a cabinet. (Id. at 100-103, 126). As plaintiff was in the process of performing a rip cut, using a push stick to push the wood into the Saw blade, the wood got stuck on a lip between the table saw top and the table. (Id. at 115). Without turning off the Saw, plaintiff reached his left hand over the blade to get the wood, while continuing to push the push stick with his other hand (Id. at 115-119). The force of the blade caused the wood to " kick back" and the blade pulled plaintiff's left hand into the Saw. (Id.) Defendant contends that it is undisputed that the type of cut being performed by plaintiff could have been done with the guard assembly in place, and had the blade guard been in place, the accident would not have occurred. (Def.'s Mem. at 9 (citing Schafebook Dep. at 94-95; Barbe Tr.[9] at 179, 245-246)).

In his Complaint, plaintiff appears to allege that the product was defectively designed and did not contain adequate warnings. (See Compl. ¶ 12 (alleging that defendant " was careless and negligent in the design, testing, inspection, manufacture, distribution, labeling, sale and promotion of the [Saw]" )). Plaintiff alleges that he sustained " serious personal injuries" " solely due to the negligence of defendant." (Compl. ¶ ¶ 11, 13). Plaintiff alleges that as a result of this incident, he has incurred various medical expenses and is no longer able to engage in his usual occupation. (Id. ¶ ¶ 13,14). Plaintiff also claims that defendant Black & Decker is liable under theories of strict liability and breach of warranty. (Id. ¶ ¶ 17-21).

B. The Expert Opinion of Lewis C. Barbe

To establish his claim that the accident was caused by a design defect, plaintiff seeks to offer the testimony of a single liability expert, Mr. Lewis Barbe, who claims that the Saw has a design defect (Barbe Rep.[10] at 13), and inadequate warnings. (Barbe Tr. at 165-66). In his expert report, dated June 11, 2013, Mr. Barbe states that " [t]he Saw was defective at the time of sale, due to the lack of proper interlocks, safety guards/proper guarding," and that " the unsafe acts and unsafe conditions created by" Black & Decker are the only cause of plaintiff's injury. (Id.) Mr. Barbe contends that " a proper permanent guard or other design" would have prevented plaintiff's injury and that plaintiff " did not misuse or abuse the saw." (Id. at 14). He further states that " the Saw lacked a proper guard necessary to prevent injury" and " [t]he unsafe conditions ... of the Saw [thus] violated the commonly

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accepted rules, recommended practices and well-known safety standards within the industry." (Id. at 15).

During his deposition, held on August 28, 2013, Mr. Barbe explained that, based on accepted industry standards, the removable " barrier" accompanying the Saw did not constitute a " guard," given that the Saw became " inherently unsafe when the barrier that was put on it [was] taken off." (Barbe Tr. at 20-21, 27). According to Mr. Barbe, data from the Consumer Protection Safety Commission (" CPSC" ) indicates that table saws are responsible for approximately ten finger amputations each day ( Barbe Rep. at 14; Barbe Tr. at 27-28), and therefore, " something is [inherently] wrong with the machine." (Barbe Tr. at 28).

Mr. Barbe postulates that " an alternative design ... was available when the Saw was designed, manufactured and sold," and he suggests several alternative designs. (Barbe Rep. at 14). For example, Mr. Barbe suggests that " a trap saw[] ... would eliminate the hazard of an unguarded table saw." (Id. at 16). He explains that a trap saw[11] " has its blade covered when it is in motion either by a guard from above or a well below the table." (Id. at 16; see also Barbe Tr. at 58-59 (explaining that a trap saw is a commercially available device, in the shape of a half moon, that prevents a saw operator from coming into contact with the blade). During his deposition, Mr. Barbe explained that a trap saw is not a mechanism that could be added to the Saw's design; it is an entirely separate product. (Barbe Tr. at 63). A trap saw is designed so that the blade " moves through the work piece, the work piece does not move through the blade; " that is, the operator of the saw places the wood to be cut on the device and then pushes a button, which causes the blade to move and cut the wood. (Id. at 59-60). He maintains, however, that a trap saw is designed to perform the same function as the table saw at issue in this case. (Id. at 63).

Mr. Barbe also suggests that " flesh-detection technology" (commonly referred to as " SawStop" ) could have been used; such technology allows " table saws to detect flesh and stop blades before they can cut into it." [12] (Barbe Rep. at 14; see also Barbe Tr. at 88 (stating that the Saw was defective given that SawStop technology was available but not used)).[13]

Further, Mr. Barbe contends that interlocks and safety barriers are known and accepted mechanisms used in the industry to prevent body parts from coming into contact with a table saw blade. (Barbe Rep, at 15; Barbe Tr. at 49, 52). According to Mr. Barbe, an interlock can be designed so that when such a protective device is removed from the Saw, " it shuts off the electricity of the machine." (Barbe Tr. at 50). He asserts that " [t]he state of

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the art of the industry, together with reasonable care, would have required the Saw's vendors and designer to recall or implement a retrofit program to warn and correct the unsafe conditions" caused by the absence of these types of safety features. (Barbe Rep. at 15).

In addition to claiming that the Saw is defectively designed, Mr. Barbe asserts that the safety warning on the Saw does not meet standards promulgated by ANSI,[14] due to the fact that the word " warning" was used, as opposed to the word " danger." (See Barbe Tr. at 165-66). Mr. Barbe also suggests that the warning label should have alerted consumers to the frequency with which the Saw " cuts off hands and body parts." (Id. at 175-76, 178). Further, Mr. Barbe asserts that the Saw lacks any instruction or warning that explains the way in which removal of the blade guard can result in a condition known as " kickback." '[15] (Id. at 179).[16]

Defendant challenges both Mr. Barbe's qualifications and expert conclusions, seeking to preclude his testimony in its entirety. Defendant contends that Mr. Barbe " does not have the necessary expertise in mechanical engineering, electrical engineering, and the design of portable table saws to render expert opinions" about them. (Def.'s Mem. at 10). Moreover, defendant asserts that Mr. Barbe's opinions " are exactly the type of opinions meant to be excluded by Rule 702 and by the Supreme Court in Daubert as unreliable and irrelevant." (Id.) In response, plaintiff claims that Mr. Barbe is qualified to render an expert opinion in this matter, that his opinions rest on facts and data, and that the principles and methods he used to reach his conclusions are reliable. (Pl.'s Mem.[17] at 3).


I. Admissibility of an Expert's Opinion Under ...

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