United States District Court, N.D. New York
TERRENCE E. McCARTNEY, ESQ., SCOTT D. KAGAN, ESQ., RHEINGOLD, VALET, RHEINGOLD, McCARTNEY & GIUFFRA LLP, New York, New York, Attorneys for Plaintiffs.
CRAIG A. CUSHING, ESQ., VICTOR L. MAZZOTTI, ESQ., MARTIN, HARDING & MAZZOTTI, LLP, Niskayuna, New York, Attorneys for Plaintiffs.
MICHAEL-HONG SIK BAI, ESQ., REBECCA L. ULISSE, ESQ., CHARLES S. TOOMEY, ESQ., LITTLETON JOYCE UGHETTA PARK & KELLY LLP, Purchase, New York, Attorneys for Defendants Kumho Tire Co, Inc., Kumho Tire USA, Inc., and Dacotah-Walsh Tire Incorporated.
THOMAS J. MAIMONE, ESQ., MAIMONE & ASSOCIATES PLLC, Port Washington, New York, Attorneys for Defendants Mack Trucks, Inc., and Ballard Mack Sales & Service, Inc.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiffs allege causes of action against Defendants Kumho Tire Co., Inc. ("KTCI"), Kumho Tire USA, Inc. ("KTUI"), and Dacotah-Walsh Tire Incorporated ("Dacotah-Walsh") (collectively, the "Tire Defendants") and Defendants Mack Trucks, Inc. ("Mack") and Ballard Mack Trucks Sales & Service, Inc. ("Ballard") (collectively, the "Mack Defendants") in negligence, strict tort liability, breach of express and implied warranties, and loss of consortium arising out of a single-vehicle truck accident that occurred on June 15, 2009. See Dkt. No. 1-1; Cruz v. Mack Trucks, Inc., No. 8:12-cv-200, Dkt. No. 1. Presently before the Court are the Tire Defendants' motion to preclude the expert testimony of Gary A. Derian and motion for summary judgment and the Mack Defendants' motion to preclude the expert testimony of Erin Shipp, Wayne McCracken, and David Smith and motion for summary judgment. See Dkt. Nos. 81, 83.
On June 15, 2009, Plaintiff Raynaldo Torrez Cruz was driving a 2005 Mack dump truck bearing license plate number 69335JS (the "Subject Truck") on the northbound side of Route I-87 in Plattsburgh, New York. See Dkt. No. 81-2, Tire Defendants' Statement of Material Facts, at ¶¶ 50, 52. At approximately 3:47 p.m., the Subject Truck's right front tire (the "Subject Tire"), a Kumho Powerfleet 983 size 425/65 R22.5 tire, failed. Id. at ¶¶ 53, 87. Mr. Cruz lost control of the Subject Truck and it left the roadway, entering an off-road wooded area approximately 500 feet from the roadway. Id. at ¶¶ 54, 56. When Mr. Cruz experienced loss of control of the vehicle, he used his CB radio to relay to other drivers making the trip with him that he had lost control. See id. at ¶ 55.
After the Subject Truck left the roadway, its engine and passenger compartment caught on fire. Id. at ¶ 54. Mr. Cruz tried opening the driver's side door of the passenger compartment to exit the vehicle, but the door was pinned with saplings. Id. at ¶ 62. He then tried opening the passenger's side door, but it was jammed. Id. Mr. Cruz then went back to the driver's side of the passenger cab to locate a hammer that he kept under the driver's seat. Id. at ¶ 63. As he was reaching under the seat for the hammer, the interior of the passenger cab was melting on him. Id. He then rolled down the passenger's side window and threw himself out of the window headfirst, landing on his shoulder. Id. He then made his way to the top of the road. Id. Mr. Cruz sustained injuries as a result of the accident. Id. at ¶ 42.
At the time of the accident, Mr. Cruz was driving the Subject Truck for his employer, Dick Glode Construction LLC ("DGCL"). See id. at ¶ 70. Richard Glode, the principal shareholder of DGCL, purchased the Subject Truck in new condition from Ballard in either 2004 or 2005. See id. at ¶ 68; Dkt. No. 83-2, the Mack Defendants' Statement of Material Facts, at ¶ 13. The Subject Truck was designed such that the battery box was positioned "a few inches" from the front of the driver's side aluminum fuel tank. Dkt. No. 92-34 at ¶ 11. During the accident, the Subject Truck's front axle assembly was displaced from the frame rail and traveled rearward relative to the frame rail. See id.; Dkt. No. 94-1 at ¶ 11. Plaintiffs contend - and the Mack Defendants deny - that as a result, the steel frame of the battery box was driven rearward and impacted the driver's side aluminum fuel tank. See Dkt. No. 92-34 at ¶ 12; Dkt. No. 94-1 at ¶ 12. Plaintiffs further contend that the steel frame of the battery box's rupture of the aluminum fuel tank caused fuel to expel under pressure, vaporize, and escape the tank, meeting an ignition source and igniting the fire. See Dkt. No. 92-34 at ¶¶ 13-16. The Mack Defendants disagree that this sequence of events occurred and contend that the fire was possibly ignited by the Subject Truck's exhaust system or turbocharger. See Dkt. No. 94-1 at ¶¶ 12-16.
The Subject Truck was originally equipped with Goodyear tires, which remained on the vehicle for roughly one year. Dkt. No. 81-2 at ¶ 73. According to Mr. Glode, the Subject Tire was placed on the Subject Truck by DGCL mechanic Mark Duprey in the fall of 2008. Dkt. No. 81-40 at 5-6; see also Dkt. No. 81-2 at ¶ 88 (referencing Mr. Duprey's testimony that he believes he installed the Subject Tire in the fall of 2008). The Subject Tire was designed and manufactured by KTCI. See Dkt. No. 90-13 at 12. It was designed for use on dump trucks and as a mixed-use tire, meaning that it could be used both on and off of paved roads. See Dkt. No. 90-13 at 14, 28. A product data book for the Subject Tire model described the tire as "[d]esigned to provide good tread wear" and as having "enhanced traction cut and chip resistance in on/off-road applications." Dkt. No. 90-14 at 43-44 (internal quotation marks omitted). In a limited warranty for the Subject Tire model, KTUI warranted that the tire would remain serviceable until its tread depth was worn to 2/32 of an inch or five years from the date of manufacture, whichever came first. See Dkt. No. 90-14 at 49-50.
DGCL purchased numerous size 425 Kumho Powerfleet tires from both Dacotah-Walsh and a retailer named Terry's Tire Town throughout 2007 and 2008. See Dkt. No. 81-40 at 6, 14. Mr. Glode testified that he could not be one hundred percent sure that he purchased the Subject Tire from Dacotah-Walsh. See id.
Mr. Duprey testified that the tires on the front of DGCL's vehicles are usually changed at least once per year. Dkt. No. 81-2 at ¶ 71. Mr. Glode estimated that the typical service life of a tire on one of his vehicles was approximately 30, 000 miles, although each tire was a little different. Id. at ¶ 73. Prior to the accident, DGCL had not rotated the tires on the Subject Truck. Id. at ¶ 76. The Subject Tire's original tread depth was 20/32 of an inch. Id. at ¶ 92. DGCL's practice was to change the front tires on its dump trucks prior to the tires reaching 4/32 of an inch of tread depth remaining, at which point New York State law requires the tires to be changed. Id. at ¶ 77. At the time of the accident, the Subject Tire's tread depth measured between 8/32 of an inch to 13/32 of an inch. See Dkt. No. 81-16 at 6; Dkt. No. 90-17 at 7.
Pursuant to his employment with DGCL, Mr. Cruz was required to keep a vehicle service logbook. Dkt. No. 81-2 at ¶ 86. The logbook contained a checklist of a visual vehicle inspection on which Mr. Cruz would note any discrepancies pertaining to a specific vehicle part that might require attention by Mr. Duprey. See id.; see also Dkt. No. 81-44 at 6-7. Specific to the vehicle's tires, Mr. Cruz testified that he visually and manually "checked the tires... [including] the tire itself, which consisted of tread and bulges or deep tears, " every day. Dkt. No. 81-44 at 7. Mr. Cruz further testified that in his inspections of the Subject Truck, he reported "[n]o problems" with the tires. Id. at 8. Additionally, Mr. Cruz testified that he checked the air pressure in both front tires of the Subject Truck on the morning of the accident and that both tires read 120 pounds per square inch ("PSI"). Id. at 25. Mr. Glode testified that on the morning of the accident, he saw Mr. Cruz check the pressure in all of the Subject Truck's tires. See Dkt. No. 81-40 at 6.
Mr. Glode also testified that he visually inspected DGCL's trucks "in the morning a lot of times, " and that he and Mr. Duprey checked the trucks when they returned from runs. Dkt. No. 81-40 at 3. In addition to tread depth indicators, Mr. Glode observed the vehicles' tires for "any scuff marks on them or things like that, " which would indicate the tire needed changing. See Dkt. No. 81-2 at ¶ 91. Mr. Glode did not notice any such marks on the Subject Tire. Id. Mr. Duprey testified that he checked the air pressure of the front steer tires of the Subject Truck with an air pressure gauge roughly two or three times per week. See Dkt. No. 81-41 at 3. He further testified that he inspected the Subject Truck's tires for missing chunks and signs of wear. Id. To Mr. Glode and Mr. Duprey's knowledge, the Subject Tire had not been damaged or repaired prior to the accident. See Dkt. No. 81-40 at 8; Dkt. No. 81-41 at 2-3.
On December 16, 2009, Plaintiffs filed a complaint in the New York State Supreme Court, Franklin County, alleging that the Subject Tire was defectively designed and manufactured. See Dkt. No. 81-2 at ¶¶ 43-44. The complaint alleges causes of action against the Tire Defendants in strict product liability, negligence, failure to warn, breach of express and implied warranties, and loss of consortium. See id. at ¶¶ 39, 45, 49. KTCI, KTUI, and Kumho Industrial Co., Ltd. removed the action to this Court on February 25, 2010. Id. at ¶ 2. On January 30, 2012, Plaintiffs filed a complaint in this Court against the Mack Defendants, alleging that the Subject Truck was defectively designed and that the Mack Defendants are liable in negligence, strict product liability, failure to warn, breach of implied warranties, and loss of consortium. See Cruz v. Mack Trucks, Inc., No. 8:12-cv-200, Dkt. No. 1. On June 14, 2012, Plaintiffs' two actions were consolidated for all purposes. See Dkt. No. 58.
On October 6, 2014, the Tire Defendants moved to preclude the expert testimony of Plaintiffs' tire expert, Gary A. Derian, and for summary judgment. See Dkt. No. 81. On October 7, 2014 the Mack Defendants moved to preclude the expert testimony of Plaintiffs' truck design expert, Erin Shipp, Plaintiffs' accident reconstruction expert, Wayne McCracken, and Plaintiffs' fire cause and origin expert, David Smith, and for summary judgment. See Dkt. No. 83. Plaintiffs oppose the motions. See Dkt. No. 90; Dkt. No. 92.
A. Motions to preclude expert testimony
1. Legal standards
Pursuant to Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony,
[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods 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 v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). The rule set forth in Daubert applies to technical or other specialized knowledge, as well as scientific knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (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 265-66 (internal alterations, quotation marks, and citations omitted).
[t]he Supreme Court has identified a number of factors bearing on reliability that district courts may consider, such as (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) a technique's known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community.
Id. at 266 (internal quotation marks and citations omitted). However, "[t]hese factors do not constitute... a definitive checklist or test, '" and "[t]he inquiry envisioned by Rule 702 is... a flexible one.'" Id. (quoting Daubert, 509 U.S. at 593-94). 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." Fed.R.Evid. 702, Advisory Committee's Note; 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. at 267. "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. (internal quotation marks and citation omitted). Accordingly, "gaps or inconsistencies" in an expert's reasoning, or arguments that an expert's conclusions are wrong, "go to the weight of the evidence, not to its admissibility." Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001) (citations omitted). Likewise, disputes regarding the nature and strength of an expert's credentials, an expert's use or application of his or her methodology, or the existence or number of supporting authorities for an expert's opinion go to the weight, not the admissibility of the expert's testimony. McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995).
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 Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) ("[B]y loosening the strictures on scientific evidence..., Daubert reinforces the idea that there should be a presumption of admissibility of evidence."). This presumption "recognizes that our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony." Amorgianos, 303 F.3d at 267. As the Supreme Court has noted, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
However, "when an expert opinion is based on data, a 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. Furthermore, "it is critical that an expert's analysis be reliable at every step." Id. at 267. Thus, while the court's focus is on the expert's principles and methodology, "conclusions and methodology are not entirely distinct from one another." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Accordingly, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered, " and "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id.
2. Mr. Derian
The Tire Defendants seek preclusion of Mr. Derian's expert testimony on the following grounds: (1) Mr. Derian lacks qualifications relevant to medium truck tires; (2) Mr. Derian's opinions concerning design and manufacturing defects are not reliable or sufficiently supported; and (3) Mr. Derian's ...