Summary
holding that it is not necessary to hold a Daubert hearing “for every motion to exclude testimony under Rule 702 ”
Summary of this case from Hilaire v. Dewalt Indus. Tool Co.Opinion
00 Civ. 2623 (NRB)
August 23, 2002
Counsel for Plaintiff: James P. Kreindler, Esq., Jacqueline James, Esq., Kreindler Kreindler
Counsel for Defendant: Stephen D. Straus, Esq., Gerard Benvenuto, Esq., Traub Eglin Lieberman Straus
MEMORANDUM AND ORDER
Deborah Faryniarz, M.D., ("plaintiff") brings this products liability action alleging that Nike, Inc., ("defendant") defectively designed its Air Certitude shoes by making the laces too long and by placing a rigid "pull-tab" near the top of the heel of the shoe. Plaintiff has alleged that this design defect caused her to fall while running on April 8, 1999, causing a wrist injury that will impair her career as an orthopedic surgeon. She seeks damages for pain and suffering and future lost wages. Defendant has filed a motion in limine to exclude the testimony of Keith Williams, Ph.D., plaintiff's proposed biomechanical expert, pursuant to Fed.R.Evid. 702. For the reasons discussed below, defendant's motion is granted in part and denied in part.
BACKGROUND
The facts of this case are discussed in our April 8, 2002, Memorandum Order denying defendant's motion for summary judgment. 2002 WL 530997, at *1. Plaintiff maintains that she fell when her right shoelace became caught on the raised leather pull-tab on her left shoe. Each party has put forward expert testimony relating to whether it is possible for plaintiff's shoelaces to have become caught in the manner she described. Defendant filed this motion on June 10, 2002, and it was fully briefed on July 17, 2002. In a telephone conference held July 25, 2002, we asked plaintiff to submit a supplemental affidavit setting forth specifically what her expert intended to testify to at trial in order for us to properly determine whether his testimony was admissible. In response to our request, plaintiff submitted a declaration from its expert, Keith Williams, on August 14, 2002.
Keith Williams is an Associate Professor at the University of California at Davis, where he teaches Biomechanics and Kinesiology. He received a Ph.D. in Biomechanics from Pennsylvania State University in 1980. He has published numerous articles in the field, and has been retained in more than a dozen lawsuits, several of which have involved footwear design. Biomechanics is a interdisciplinary field requiring training in several different scientific fields. therefore conclusions based on biomechanic must be based on technical data and tested
Williams' qualifications are drawn from his curriculum vitae. Decl. of Jacqueline James, Ex. 2.
According to the web pages of several programs offering degrees in Biomechanics, the curriculum includes courses in biology, chemistry, physics, statistics, and engineering. See, e.g., Stanford University Biomechanical Engineering Division, MSE: BME Degree Reguirements, at http://www.stanford.edu.group/biomech/msebme.html (last visited August 14, 2002); Occupational and Industrial Orthopedic Center, Courses in Ergonomics and Biomechanics, at http://www.oioc.org/er_cou.htm (last visited August 14, 2002).
Williams' proposed testimony as set out in his supplemental declaration can be divided into three types of testimony: critiques of the experiment designed by defendant's expert, Dr. Mark Grabiner; conclusions based on his observations and experience regarding the feasibility of plaintiff's theory of causation; and theories of alternate designs that Nike could have implemented to prevent the accident.
DISCUSSION
I. Standard for Expert Evidence
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which 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.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993), the Supreme Court mandated that the trial judge perform a "gatekeeping" function in assessing the admissibility of expert evidence under Rule 702. Such a task involves ensuring that the expert evidence is both relevant and reliable. There is no question that Williams' testimony, if reliable, is relevant. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court applied the Daubert analysis to expert testimony by non-scientists, such as the testimony offered in this case.
Factors that may be considered in determining the reliability of an expert's reasoning include whether the expert's theory can be tested, whether there has been peer review or publication, the existence of known or potential error rates and standards governing the technique's operation, and whether there has been general acceptance of the methodology in the scientific community. Daubert, 509 U.S. at 593-94.
Despite the Second Circuit's inclusive standard for expert testimony, a trial court should not abandon its gatekeeping role and rely only upon cross-examination to expose any flaws in a proposed expert's testimony where the expert's methodology is untestable. Colon v. BIC USA, Inc., 199 F. Supp.2d 53, 78 (S.D.N.Y. 2001). Proposed expert testimony may be admissible for certain purposes but not for others. See, e.g., Colon, 199 F. Supp.2d at 65; Nemir v. Mitsubishi Motors Corp., 200 F. Supp.2d 770, 772-73 (E.D. Mich. 2002).
Expert testimony cannot be based on an expert's unfounded assertion.General Electric Co. v. Joiner, 522 U.S. 136, 145 (1997) (holding that "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."). If expert testimony purports to be based on scientific or technical principles, it must be testable. See Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995). See also Daubert 509 U.S. at 590 (stating that expert testimony must be based on "what is known.") Speculation and conjecture are inappropriate uses of expert testimony. In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 824 (2d Cir. 1994),overruled on other grounds, Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217 (1996).
II. Dr. Williams' Proposed Testimony
As Dr. Williams' proposed testimony covers several topics, we will address each in turn.
A. Testimony about Grabiner's Study
Williams intends to testify regarding the flaws in Dr. Grabiner's running simulations using the Air Certitude shoes in question. Plaintiff's counsel has expressed his intention to offer this portion of Williams' testimony to rebut Grabiner's testimony, based on his simulations, that plaintiff could not have fallen in the manner she has asserted. An expert can critique the methodology of the study of another expert without conducting an experiment of his own. Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94-95 (2d Cir. 2000) (holding that expert need not have personally collected the data on which she relied). William' s lengthy discussion of the flaws of Grabiner's study are admissible, and he can testify to his opinion that an accurate study would not be feasible. Williams' testimony as to the problems with Grabiner's simulations is admissible as rebuttal to Grabiner's expected testimony that this is testable and that accident could not have occurred.
B. Testimony Regarding Feasibility of Plaintiff's Testimony
Dr. Williams stated that "I am confident that the plaintiff's running pattern could have caused the shoe on the right foot to pass close enough to the shoe on the left foot during swing so that the lace could have caught" the pull-tab. Jacqueline James Decl., Ex. 4, Williams Decl. at ¶ 22. Williams' testimony on this topic is based on his experience and observations and his brief interactions with the shoes, which consisted of looking at the shoes from a variety of angles and poking and prodding them. Decl. of Steven Straus, Ex. G., Keith Williams Dep. at 83. Williams' conclusion that plaintiff could have fallen in the manner she alleges is not predicated upon any scientific or technical analysis of either the plaintiff or the shoes in question. Instead, Williams states that "[m]y opinion is based on experimental studies I have done over the past 25 years that have examined running mechanics for a variety of runners, with a variety of footwear, and in varying conditions and speeds." Williams Supp. Decl. at ¶ 34. Moreover, plaintiff claims that Williams relied on Nike's own specifications and the "generally accepted" fact that "a protruding material may catch on a long shoelace." Pl. Opp. Mem. at 17.
According to Williams' own statements, his conclusions regarding causation are incapable of being tested or challenged. This is precisely the type of evidence Rule 702 was intended to exclude. Pretter v. Metro North Commuter Railroad Co., 206 F. Supp.2d 601, 603-04 (S.D.N.Y. 2002) (granting motion to exclude testimony c)f an expert purporting to testify on the grounds that his reliance on a brief and casual visual inspection" of plaintiffs' work environment and "plaintiffs' own vague, conclusory and self-serving statements" consisted of "imprecise methodology and inadequate investigation" and therefore lacked "precision, reliability, and falsifiability."). Plaintiff cites Cacciola v. Selco Balers, Inc., 127 F. Supp.2d 175, 180-81 (E.D.N.Y. 2001), for the proposition that testimony "may also rest on the personal knowledge or experience of the engineer." See also Kumho Tire at 153-54. (allowing observation-based data). However, the court in Cacciola excluded the proposed expert testimony on the grounds that "[t]he opinion which he would express rests upon unsubstantiated generalizations, speculative hypotheses and subjective evaluation that are based neither upon any professional study or experience-based observation." Id. at 183. The case law strongly suggests that Williams' conclusions are insufficiently trustworthy to permit him to testify on the causation issue. See Stone v. 866 3rd Next Generation Hotel, LLC, No. 99 Civ. 4780, 2002 WL 1046706, at *34 (S.D.N.Y. May 22, 2002) (rejecting testimony where there was no data, testing methodology, or empirical evidence and therefore no means of measuring the reliability)
While plaintiff correctly argues that an expert may rely on his experience as the basis for his opinion, that expert must explain how that experience leads to his proffered conclusion and why it provides a sufficient basis for it. See Nemir, 200 F. Supp.2d at 774. We do not question that Williams can testify as a lay witness, under Fed.R.Evid. 701, to the fact that he poked and prodded the shoes and to his observations of the shoes' condition. See Colon 199 F. Supp.2d at 80 (permitting witness to testify to observations of the physical condition of the allegedly defective product but not to the fact that the product had been tampered with). However, Rule 701 testimony does not extend to technical conclusions. Plaintiff may not cloak non-technical evidence, which does not meet the Kumho Tire standard, or non-scientific evidence, which does not meet the Daubert standard, in expert garb. In sum, Williams can testify to the fact that plaintiff's shoes had long laces and a stiff pull-tab, but he cannot testify to any conclusions based on these facts as they are not supported by verifiable tests.
Finally, despite plaintiff's claims to the contrary, Nike does not need to offer expert testimony to argue that Williams' testimony is unreliable. Pl. Opp. Mem. at 11. See Brooks v. Outdoor Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (explicitly rejecting the contention that a party must use expert testimony to challenge its opponent's proferred expert testimony under Daubert and Kumho Tire). In Brooks, the Second Circuit went on to state that "[t]he failure to test a theory of causation can justify a trial court's exclusion of the expert's testimony." Id. Therefore, Williams cannot use his testimony that plaintiff's causation theory is untestable as the basis for his conclusion that the very same theory is credible.
C. Testimony About Alternative Designs
Williams stated that there are numerous alternate designs that Nike could have implemented to prevent the accident. Williams Supp. Decl. at ¶ 12. This testimony is based on his general knowledge of shoe design accumulated through many years of involvement in the shoe industry. While this knowledge is not scientific and could potentially be offered by a shoe salesman, Williams does have sufficient knowledge of the industry to be permitted to testify to the presence of various lacing schemes and pull-tab placements in different shoe models. However, because Williams cannot testify as an expert regarding the cause of plaintiff's fall, it follows that he cannot offer testimony as to what alternate designs could have prevented the fall.
D. Hearing Unncessary
Although defendants requested a Daubert hearing, it is not necessary to hold an evidentiary hearing for every motion to exclude testimony under Rule 702. See Margaret A. Berger, "The Supreme Court's Trilogy on the Admissibility of Expert Testimony," Reference Manual on Scientific Evidence 29 (2d ed. Fed. Judicial Center 2000). Having asked the plaintiff to present a declaration setting forth her expert's direct testimony, we have determined that cross-examination by the defendant would not be useful in reaching our determination on the specific issues presented. Accordingly, we find that a pretrial hearing on this issue is not necessary.
CONCLUSION
For the reasons discussed above, defendant's motion to exclude plaintiff's biomechanics expert is granted in part and denied in part. Plaintiff's expert may testify to the flaws in the design of Dr. Grabiner's test and as to the availability of alternate lacing systems and pull-tab designs on the shoe market. He may not testify to his conclusions as to what caused plaintiff to fall, nor whether any of his proposed alternate designs would, have prevented the incident.