Opinion
96 Civ. 1671 (GBD).
March 11, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Cortland Racquet Club filed this action against defendants Oy Saunatec Ltd., Saunatec, Inc., (collectively, "Oy Saunatec"), H.B.C., Inc. d/b/a Helo Saunas from Finland ("H.B.C., Inc."), and Electro-Gerantebau GMBH. Defendant Oy Saunatec then filed an action against third party defendant Colin Clarke d/b/a Colin Clarke Electrical Service and Colin Clarke Electrical Service Inc. (collectively, "Colin Clarke"). Thereafter, summary judgment was granted to defendant Electro-Gerantebau GMBH on the grounds that this Court lacked personal jurisdiction.
Defendant Oy Saunatec moves to preclude expert testimony pursuant to Rule 702 of the Federal Rules of Evidence and for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Cortland Racquet Club opposed these motions. Additionally, third party defendant Colin Clarke moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and joins in defendant Oy Saunatec's motion for summary judgment.
The facts underlying this dispute arose on or about August 30, 1994, when a fire occurred on the plaintiff's premises located at 87 Albany Post Road, Montrose, New York. At the time of the fire, a model SKLE 120 sauna heater manufactured by defendant, Oy Saunatec, Ltd., and sold by its United States distributor, Saunatec, Inc., was located inside of the club. That sauna heater was installed by third party defendant Colin Clarke on February 17, 1994. The fire originated in the southeast corner of the men's sauna room in the area of the sauna heater and caused extensive damage to the club.
Discussion
A. Colin Clarke's Motion for Summary Judgment
Third party defendant Colin Clarke moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Moreover,
the burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999), quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
For Colin Clarke to prevail on a summary judgment motion, it must demonstrate "the absence of any material issues of fact." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). In deciding whether or not to grant summary judgment, this Court is required to draw all reasonable inferences in Oy Saunatec's favor and if "a material issue is found to exist, summary judgment is improper, and the case must proceed to trial." Id. Moreover, it is not for this Court to "determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).
Defendant Oy Saunatec alleges that third party defendant Colin Clarke caused or contributed to plaintiff's damages by its culpable conduct, carelessness, and negligence when it failed to properly install the sauna heater, sauna heater control panel, and new control circuit in the men's sauna room. Additionally, Oy Saunatec alleges that Colin Clarke was negligent in other respects.
Oy Saunatec puts forth very little evidence to substantiate its allegations. Moreover, Oy Saunatec puts forth no evidence that even if Colin Clarke was careless or negligent in any respect, that it was also responsible for the fire that occurred at plaintiff's club. Even Oy Saunatec's own expert did not conclude that Colin Clarke caused this fire.
Oy Saunatec argues that the rocks in the sauna heater were improperly installed. First, there is no evidence that Colin Clarke installed the sauna rocks. In fact, the only evidence Oy Saunatec puts forth in this regard is the testimony of another employee of Cortland Racquet Club, Anthony Manfredonia. Oy Saunatec alleges that Mr. Manfredonia denied placing the rocks in the sauna heater himself, but he did not make any reference to, or allegation that Colin Clarke placed the rocks in the sauna heater. Oy Saunatec further alleges that Colin Clarke used improper wiring in the installation of the sauna heater, that the wiring was poor between the control panel and the sauna heater, and that Colin Clarke improperly installed the heat sensor. However, Oy Saunatec did not allege, nor did Oy Saunatec provide, any evidence that either of these factors caused the fire. Finally, Oy Saunatec alleges that the timer installed by Colin Clarke is "shrouded in mystery" because the timer that was recovered, examined, and photographed after the incident was not the timer that Colin Clarke installed. Again, Oy Saunatec did not link this "mysterious timer" to Colin Clarke or to the cause of the fire.
To establish a prima facie case of negligence under New York law, Oy Saunatec must show that "(1) the [third party] defendant owed the plaintiff a cognizable duty of care; (2) [third party] defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of that breach." King v. Crossland Savings Bank, 111 F.3d 251, 255 (2d Cir. 1997), citing Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995). As to the first element, defendant has sufficiently demonstrated that Colin Clarke clearly had a cognizable duty of care to properly install the sauna and its accompanying parts. Defendant has not, however, put forth sufficient evidence to indicate that Colin Clarke breached that duty and was a proximate cause of the damages suffered by plaintiff. Therefore, defendant has not put forth a prima facie case of negligence against Colin Clarke, and Oy Saunatec's third party complaint must be dismissed.
B. Oy Saunatec's Motion to Preclude Expert Testimony and Motion for Summary Judgment
Defendant Oy Saunatec moves to preclude the admission of testimony by plaintiff's expert witness, Paul Kaczmarczik, pursuant to Rule 702 of the Federal Rules of Evidence. Rule 702 states:
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.
As amended effective December 1, 2000. Prior to the amendment, Rule 702 stated, "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."
The Rule was amended in response to the Supreme Court decisions Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). "The amendment affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." See Fed.R.Evid. 702 advisory committee's notes.
In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court enunciated the standard for admission of scientific evidence by an expert. The Court found that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court found that the holding in Daubert which set forth "the trial judge's general `gatekeeping' obligation — applies not only to testimony based on `scientific' knowledge but also to testimony based on `technical' and `other specialized' knowledge." 526 U.S. at 141. Therefore, this Court must determine whether the Mr. Kaczmarczik's testimony should be presented to a jury at trial based on the standards set forth in Daubert and Kumho Tire.
Mr. Kaczmarczik is an electrical engineer whom plaintiff intends to introduce as an expert. Plaintiff states that Mr. Kaczmarczik has evaluated the safety of hundreds of electrical devices that were alleged to have caused fires, and has testified as an expert witness in fire cases on over 200 occasions.
Mr. Kaczmarczik examined defendant's sauna heater and conducted tests to verify his conclusions. These tests were performed on the sauna heater that was located in the women's sauna room which was undamaged by the fire. The tests consisted of filling the undamaged sauna heater with rocks and then threading strips of towels through the grill to show how combustible material could come into contact with the heating elements.
Mr. Kaczmarczik concluded that the protective grill at the top of the heater was defectively designed because the spaces between the members of the grill are too far apart, thus allowing combustible material to come into contact with the heating element. Mr. Kaczmarczik further concluded that there was insufficient room between the grill and the heating elements. This would not allow the individual who is installing rocks into the sauna to place a sufficient number of rocks inside to prevent combustible material from coming into contact with the heating elements. He then opined in his report that there was a feasible manner of designing the sauna heater to avoid the possibility of inadvertent ignition of combustibles by the heating elements; he stated that there should be smaller spaces between the members of the grill and additional cross-members. Mr. Kaczmarczik then concluded that the ignition point of the fire was located inside the sauna heater and that a combustible item did come in contact with the heating elements thereby causing the fire. He based his conclusions on his "familiarity with the heater's operation, and his engineering education and training and experience in product failure analysis."
In evaluating whether or not this Court should allow Mr. Kaczmarczik to present this evidence to the jury, this Court must determine that the evidence is both relevant and reliable. See Daubert, 509 U.S. at 589. In so doing, this Court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. This Court has great flexibility in making a preliminary determination regarding whether to admit expert testimony. As the Second Circuit noted, "Daubert reinforces the idea that there should be a presumption of admissibility of evidence . . . it emphasizes the need for flexibility in assessing whether evidence is admissible." Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995). Therefore, this Court must determine whether Mr. Kaczmarczik's testimony is so inherently unreliable as to make it devoid of any evidentiary value.
Professor Kaczmarczik's conclusion that the defective design of the sauna heater caused the fire by permitting combustible items to come into contact with the heating elements is based on the elimination of other alternative causes of the fire. The manner in which Mr. Kaczmarczik reached his conclusion is appropriate evidence to bring before a jury during trial. See Breider v. Sears, Roebuck and Co., 722 F.2d 1134, 1138 (3d Cir. 1983) (finding that "[w]here a fire investigator identifies the cause of fire in terms of probabilities (as opposed to mere possibilities) by eliminating all but one reasonable potential cause, such testimony is highly probative.")
Moreover, it is not for this Court to preclude expert testimony simply because there is additional contradictory testimony that will be available to the jury. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attaching shaky but admissible evidence." Daubert, 509 U.S. at 596. This Court must evaluate the methodology used by the proposed expert in determining whether or not to admit his or her testimony, not his or her conclusions. It is the jury's responsibility to evaluate the expert's conclusions and to weigh this evidence against the evidence presented by other witnesses and on-site investigators. Therefore, this Court will deny Oy Saunatec's motion to preclude Mr. Kaczmarczik's testimony pursuant to Rule 702 of the Federal Rules of Evidence.
Additionally, Oy Saunatec moves for summary judgment with respect to plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. As stated earlier with regard to Colin Clarke's motion for summary judgment, Oy Saunatec is entitled to summary judgment "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Carrion v. Enterprise Assn., Metal Trades Branch Local Union 638, 227 F.3d 29, 32 (2d Cir. 2000),citing FED. R. CIV. P. 56. "An issue of fact is material for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000). This Court "must draw all reasonable inferences in favor of the nonmoving party and grant summary judgment only if no reasonable trier of fact could find in favor of the nonmoving party." Carrion, 227 F.3d at 32-33.
The disputed expert testimony alone raises genuine issues of material fact as to Oy Saunatec's liability and gives this Court a sufficient reason to deny Oy Saunatec's summary judgment motion. At this point in the proceedings, this Court cannot resolve the issues raised in the various experts' reports, and must leave this responsibility to the jury. Oy Saunatec's burden in demonstrating that summary judgment should be granted is significant, given that it is a "drastic devise, since its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999), quoting Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). The Court recognizes that this is one of those instances in which "summary judgment is too blunt a weapon with which to win the day, particularly where so many complicated issues of fact must be resolved in order to deal adequately with difficult questions of law which remain in the case."Miller v. General Outdoor Advertising Co., Inc., 337 F.2d 944, 948 (2d Cir. 1964). Therefore, Oy Saunatec's motion for summary judgment is denied.
Conclusion
Third party defendant Colin Clarke's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is GRANTED.
Defendant Oy Saunatec's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and motion to preclude plaintiff's expert testimony pursuant to Rule 702 of the Federal Rules of Evidence are DENIED.
SO ORDERED.