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Roman v. Sprint Nextel Corp.

United States District Court, S.D. New York

November 13, 2014

MARIA I. ROMAN, Plaintiff,


VALERIE CAPRONI, District Judge.

Plaintiff alleges that she sustained a burn on her left breast, which developed into complex regional pain syndrome ("CRPS"), during an overnight bus trip from North Carolina to New York City between October 2 and 3, 2010, from a cellular phone that was manufactured by Defendants HTC Corporation and HTC America Holding, Inc. ("HTC") and sold by Defendants Sprint Spectrum, L.P., Sprint Solutions, Inc., and Sprint/United Management Company ("Sprint"). Sprint 56.1 ¶¶ 4-6. She brought this action for failure to warn of that risk. Presently before the Court is Plaintiff's motion in limine to preclude the defendants' engineering and warnings experts. Dkt. 72. The Court assumes the parties' familiarity with the facts, history, and procedural posture of the case.



A failure to warn plaintiff bears the burden of establishing: (1) that the defendant had a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that the failure to do so was the proximate cause of a harm suffered by the plaintiff. In re Fosamax Prods. Liab. Litig., 924 F.Supp.2d 477, 486 (S.D.N.Y. 2013); see also Santoro v. Donnelly, 340 F.Supp.2d 464, 485 (S.D.N.Y. 2004). Once the first two elements are satisfied, the Court presumes proximate causation if no warning was provided or if the warnings were inadequate to warn against the cause of the specific harm. In re Fosamax, 924 F.Supp.2d at 486. "Failure-to-warn liability is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause." Liriano v. Hobart Corp., 92 N.Y.2d 232, 243 (1998).

The duty to warn extends to both "latent dangers resulting from foreseeable uses of [a] product of which [the manufacturer] knew or should have known, " and "the danger of unintended uses of a product provided these uses are reasonably foreseeable." Bee v. Novartis Pharma. Corp., ___ F.Supp.2d ___, No. 12-CV-1421 (JFB), 2014 WL 1855632 at *10 (E.D.N.Y. May 9, 2014) (quoting Liriano, 92 N.Y.2d at 237). "This duty is a continuous one, and requires that a manufacturer be aware of the current information concerning the safety of its product." Id. To establish a duty to warn under either theory, a plaintiff must first establish a causal link between the injury and the product, which has two components: general causation and specific causation. "General causation bears on whether the type of injury at issue can be caused or exacerbated by the defendant's product, ' while specific causation addresseswhether, in the particular instance, the injury actually was caused or exacerbated by the defendant's product." In re Rezulin Prods. Liab. Litig., 441 F.Supp.2d 567, 575 (S.D.N.Y. 2006) (quoting Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 n.1 (2d Cir. 2005) (emphasis in Ruggiero )).

If a defendant had a duty to warn, the focus shifts to whether the defendant adequately discharged that duty. "Liability for failure to warn may be imposed based upon either the complete failure to warn of a particular hazard or the inclusion of warnings that are insufficient.'" Fisher v. Multiquip, Inc., 96 A.D.3d 1190, 1192 (3d Dep't 2012) (quoting Dimura v. City of Albany, 239 A.D.2d 828, 829 (3d Dep't 1997)). "An adequate warning or instruction is one that is understandable in content and conveys a fair indication of the nature and extent of the danger to a reasonably prudent person." Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 646 (4th Dep't 1984). "The sufficiency of a warning is dependent upon both the language used and the impression that the language is calculated to make upon the mind of the average user of the product." Id. (emphasis added). "Of critical importance is whether the warning sufficiently conveys the risk of danger associated with the product and is qualitatively sufficient to impart the particular risk of harm." Id.

If no warning is provided, New York's "heeding presumption" dictates that the Court presume proximate cause - that is, that a user would have heeded warnings if they had been provided and that the injury would not have occurred. Anderson v. Hedstrom Corp., 76 F.Supp.2d 422, 441 (S.D.N.Y. 1999). However, "where a defendant can show, via specific facts, ' that any given warning would have been futile - either because any such warnings would not have been heeded or because the injury would have occurred, regardless of the given warnings - a defendant will have successfully rebutted" the heeding presumption. Bee 2014 WL 1855632 at *12.

Because the jury steps into the shoes of the average user, it does not need expert testimony to evaluate a warning; the ultimate issue of the adequacy of a warning is a question of fact for the jury based on the totality of the circumstances. Billar v. Minn. Mining & Mfg. Co., 623 F.2d 240, 247 (2d Cir. 1980). If defendants produce expert evidence suggesting a warning was sufficient or additional warnings would have been ineffective under the circumstances, jurors are free to accept or disregard that testimony in favor of their own judgment. Adebiyi v. Yankee Fiber Control, Inc., 705 F.Supp.2d 287, 290-91 (S.D.N.Y. 2010).


Defendants proffer their engineering experts - Mark McNeely and Eric Lalli - to rebut Plaintiff's evidence of injury causation in order to negate the contention that they had a duty to warn in the first instance. Defendants proffer their experts on the subject of warnings - Dr. Jane Welch and Dr. Frank Gomer - to challenge proximate causation by opining either that the warnings provided were adequate to alert Plaintiff to the harm of her use or that no warning was required because the defendants had no knowledge of this alleged danger.

a. Standard for Admissibility

The standard for admissibility of expert testimony was discussed at length in a prior decision in this case, Roman v. Sprint Nextel Corp., No. 12-CV-276 (VEC), 2014 WL 5026093 at *3-4 (S.D.N.Y. Sept. 29, 2014) (Dkt. 111), and will not be repeated here.

b. Engineering Experts

i. Results of Exemplar Field Testing

Defendants' engineering experts (the "Experts") conducted a field test on September 21, 2013, approximately three years after Plaintiff's alleged injury, by traveling on the same overnight bus route from Raleigh, North Carolina to New York City under conditions designed to replicate Plaintiff's experience. Haworth Decl. Ex. A at 3 ("McNeely Report, " Dkt. 85-3). Defendants provided the Experts with the same model cell phone as Plaintiff's (the "exemplar phone"). Id. at 17. The Experts activated the exemplar phone's Bluetooth, WiFi, and 4G[1] capabilities and successfully completed a two-way phone call and internet search to verify that the exemplar phone was functioning. Id. To monitor the surface temperature of the cell phone during the trip, the Experts placed multiple thermocouples[2] on the cell phone's display screen and McNeely's skin and one thermocouple on the back of the cell phone. The Experts also used thermocouples to measure ambient air temperature and McNeely's baseline skin temperature. Id. At the outset, McNeely's skin temperature was 35 degrees Celsius, and the cell phone's screen temperature was 30 degrees Celsius. Cerussi Decl. Ex. FF at 5 ("Lalli Report, " Dkt. 45-3).[3]

Thirty minutes into the bus ride, McNeely placed the fully-charged cell phone against his clean-shaven chest underneath a women's cotton camisole similar to the one Plaintiff wore on her trip and secured it for the remainder of the trip. McNeely Report at 18. At the conclusion of the trip, McNeely removed the cell phone and reported neither redness nor indications of a skin burn in the area; the phone had not stuck to his skin. Id. at 29. McNeely also reported that the battery was "nearly fully charged, " indicating that the exemplar phone "did not consume much battery life during the testing." Id. at 30. The results of the experiment showed that throughout the test the temperature of the cell phone and the surface of McNeely's skin were nearly the same and both were approximately 35 degrees Celsius. Id. at 31. The back of the phone was a few degrees cooler. Id. at 31. The ambient temperature on the bus was several degrees cooler at approximately 22 to 24 degrees Celsius.[4] Id. Lalli designed the exemplar field test and monitored the temperature readings throughout the bus ride. Lalli Decl. ¶¶ 6, 9 (Dkt. 89).

ii. Mark McNeely's Qualifications

Plaintiff does not challenge the qualifications of Mark McNeely, Sprint's engineering expert. McNeely holds Bachelors and Masters of Science degrees in Electrical and Computer Engineering from the University of Wisconsin at Madison and has more than thirteen years of engineering experience. Haworth Decl. Ex. A-1 at 2 ("McNeely CV, Dkt. 85-2). He has extensive work experience in the design, construction, evaluation, and testing of radiofrequency ("RF") systems as an electrical engineering and computer science consultant, including conducting engineering analyses related to, inter alia, cellular phone communications, telecommunications products and infrastructure, wireless networks, broadband technology, biometric systems, radiofrequency identification (RFID), and solar power infrastructure. Id. at 1. Mr. McNeely is a Registered Professional Electrical Engineer, a Certified Fire and Explosion Investigator with the National Association of Fire Investigators, and a member of the Institute of Electrical and Electronic Engineers, the National Association of Fire ...

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