Summary
holding that “courts have repeatedly rejected expert testimony where a proposed theory or alternative design was not properly tested for safety or utility”
Summary of this case from Hilaire v. Dewalt Indus. Tool Co.Opinion
No. 02-CV-3719 (NGG).
November 4, 2004
MEMORANDUM AND ORDER
Plaintiffs bring this strict product liability, negligence, and breach of warranty action seeking compensation for injuries Bracha Sarah Baila Kass ("Sarah Kass"), an infant, allegedly suffered when scalded by hot water from an overturned West Bend 30-cup Party Perk coffee maker. The defendant has moved to exclude expert testimony, and also for summary judgment. For the reasons set forth below, the defendant's motions are GRANTED and the complaint is dismissed.
I. BACKGROUND
A. Sarah Kass' Accident
Mrs. Rachel Kass allegedly purchased a West Bend coffee maker in August or September of 1991. Rachel Kass Dep., Def. Ex. C at 22. Mrs. Kass no longer retains possession of the coffee maker, but has identified it as model 57030, or the West Bend 30-cup Party Perk. Mrs. Kass used the coffee maker to keep hot water for the Sabbath, and Jewish holidays on which cooking was prohibited. Id. at 26-27. On September 10, 1999, at approximately 11:00 a.m., Mrs. Kass filled the coffee maker to use as a source of hot water during Rosh Hashana, the Jewish New Year. Id. at 35-36. At approximately 1:30 p.m., Mrs. Kass briefly left her home to deliver a gift to a friend. Id. at 42. Before leaving, Mrs. Kass informed her housekeeper, Isabel Bulat, to "keep an eye" on her children, three of whom, Blimi, age 6, Sarah, age 4, and Yocheved, age 5, were in the kitchen doing arts and crafts. Id. at 44; Isabel Bulat ("Bulat") Dep., Def. Ex. F at 37.
At approximately 1:45 p.m., Ms. Bulat, who was in another room, heard a "boom" from the kitchen and ran in to find Sarah lying motionless on the kitchen floor near the fallen coffee maker, amidst "quite a lot" of steaming water. Bulat Dep., Def., Def. Ex. F at 24-25. Ms. Bulat ran to Sarah, picked her up, realized she must be burnt, and carried her into the bathroom where she put Sarah in a tub of cold water. Id. at 26. Mrs. Kass arrived home shortly thereafter. Sarah was rushed to Jersey Shore Hospital and was stabilized over the next two hours. From there, Sarah was flown to Saint Barnabas Hospital where she remained as an inpatient from September 10, 1999 until October 4, 1999. Sarah underwent two skin grafts, one on her abdomen, back, buttocks, and neck, and the other on her right and left shoulders and right arm. As a result of the accident, Sarah has permanent scar tissue on 80 percent of her back, on her buttocks, both shoulders, neck, and right arm.
As no adults observed Sarah's accident, reconstructing the specific events leading up to the accident is largely dependent on the recollection of Sarah and the other Kass children, as well as what can be inferred from the state of the kitchen both before and after the accident. Mrs. Kass typically kept the coffee maker on the counter against the wall between the sink and the microwave. Def. Ex. B. Mrs. Kass kept the coffee maker in this location to "be as far as it can safely be from kids." Rachel Kass Dep., Def. Ex. C at 31. According to Mrs. Kass, it was her practice to twist the lid of the coffee maker until it locked in place. Id. at 102. Mrs. Kass did not read the literature accompanying the coffee maker but believed that locking the coffee maker would keep water in the coffee maker from escaping.Id. at 26, 102.
Mrs. Kass recalls that, immediately following Sarah's accident, her children told her that "Sarah had climbed the counter to get a straw." Id. at 48. The cabinet where the straws were kept was above the sink. Sarah had just turned four years old at the time of the accident. In her deposition, which took place over four years after the incident, Sarah recalled climbing on the counter and walking to the cabinet to get a straw. Sarah Kass Dep., Def. Ex. A at 28. After retrieving the straw, Sarah recalled walking back across the counter a bit and then jumping down off the counter, facing away from the counter. Id. at 33-34. Sarah's next memory was that "[the coffee maker] spilled on me and then the cleaning lady took me upstairs to the bathroom." Id. at 35.
At the time of the accident, Sarah Kass was wearing a "flary" jumper. Rachel Kass Dep., Def. Ex. C at 105. Plaintiffs surmise that the jumper Sarah was wearing at the time of the accident caught on the spigot of the coffee maker and pulled it off the counter when Sarah jumped to the floor. The coffee maker then overturned, spilling scalding hot water onto Sarah, which resulted in her injuries. However, neither Sarah, nor the other Kass children, can recall exactly how the coffee maker ended up on the kitchen floor. Ms. Bulat, who was the first adult to enter the kitchen following the accident, does not recall whether the lid was still on the coffee maker or whether the cord was still attached. Bulat Dep., Def. Ex. F at 28-29.
The plaintiffs are no longer in possession of the coffee maker. Following Sarah's accident, Mrs. Kass no longer wanted the coffee maker and gave it to her mother-in-law. Rachel Kass Dep., Def. Ex. C at 21. Her mother-in-law then loaned the coffee maker to someone for a party and it was never returned. Id.
B. The West Bend Party Perk
Richard Franke ("Franke"), an expert consultant retained by defendants, states in his report that the West Bend coffee maker allegedly used by the plaintiffs is approximately 8 5/8 inches in diameter and 14 ½ inches in height to the top of the cover handle. Def. Ex. L at 4. It consists of a double walled metal body with an air gap between the two walls serving as an insulated barrier to keep coffee warm for up to two hours when the coffee maker is not plugged into an electrical outlet. The coffee maker rests on three phenolic legs spaced approximately 120 degrees from each other, with one of the legs opposite the spigot location. Id.
The court cites to the defendant's expert report because it provides the most complete description of the coffee maker in question. The plaintiffs have not disputed the description provided by the defendant in any material respect.
Franke also reports that the Party Perk's polypropylene lock-on lid "is clearly visible to the user as to whether it is properly engaged so as to minimize risk of injury." Id. at 5. The cover does not stop the flow of liquid, but does lessen the initial flow rate of liquid from the coffee maker. Id. To allow for the proper venting of steam, there is a small air gap between the cover and the body of the coffee maker. The venting also prevents the coffee maker from becoming a pressure vessel, and serves as an air intake to prevent a vacuum condition from occurring as the coffee cools. Id. The coffee maker is constructed with a spigot location such that the spigot will dispense all but one cup of coffee without tipping. Id.
Upon an examination of an exemplar of the subject coffee maker, the plaintiffs' expert, Dr. Richard Harkness ("Harkness") concluded that the coffee maker was defectively designed due to the high initial flow rate of hot liquid from the coffee maker in the event it is accidentally overturned. Def. Ex. G. at 9. Harkness proposed four alternative designs to prevent or minimize injuries from an overturned coffee maker: (1) anchoring the coffee maker to the wall; (2) using a pressure vessel design fitted with a pressure relief valve; (3) sealing the lid with a gasket and providing holes in the lid for vapor to escape; or (4) using a top with interrupted screw designs as used by other manufacturers. Id. at 5-8. According to Harkness, these proposed design alternatives demonstrated that "[s]imple and effective means were available to dramatically decrease the initial flow rate of hot fluid out of an overturned coffee urn."Id. at 9.
II. DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY
The defendant asserts that the testimony and report of the plaintiffs' expert, Dr. Harkness, should not be admitted. The plaintiffs have submitted no other evidence, other than Harkness' testimony and report, that supports the theory that the defective design of the West Bend coffee maker caused Sarah Kass' injuries. The defendant argues that Harkness does not have the requisite experience or education to provide a relevant and reliable opinion on the design of the coffee maker. In addition, the defendant asserts that Harkness did not adequately test his alternative designs for the coffee maker and that his testing methodology is unreliable because it was not subject to peer review nor is it generally accepted in the engineering community.
A. Standard for Admissibility of Expert Opinion
On a motion for summary judgment, it is appropriate for a district court to decide questions regarding the admissibility of evidence, including expert opinion evidence. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). This is so because in deciding a summary judgment motion, a "district court properly considers only evidence that would be admissible at trial." Nora Beverages v. Perrier Group of America, 164 F.3d 736, 746 (2d Cir. 1998). Evidence considered in the expert report must therefore be evaluated under Federal Rule of Evidence 702 before it is considered in a ruling on the merits of a summary judgment motion. If a proffer of expert testimony in the form of an expert report is excluded as inadmissible under Rule 702, the summary judgment determination is made on a record that does not include that evidence. Raskin, 125 F.3d at 66-67.
Federal Rule of Evidence 702, which governs the admissibility of expert evidence, provides:
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.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the district court functions as the gatekeeper for expert testimony and ensures that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." In Daubert, the Supreme Court articulated four factors pertinent to determining the reliability of an expert's reasoning or methodology: (1) whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593-94. These factors do not, however, constitute a "definitive checklist or test." Id. at 593. Rather, they are intended to be applied flexibly, depending on the particular circumstances of the particular case at issue. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).
Daubert applies to all expert testimony, including as here, the technical testimony of an engineer. Kumho Tire, 526 U.S. at 148. Expert engineering testimony may rest on scientific foundations, the examination of which invokes the Daubert factors directly, but may also rest on the personal knowledge or experience of the engineer. Kumho Tire, 526 U.S. at 150. In certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert's experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community. Id. at 151; Colon v. Molina, 199 F.Supp.2d 53, 70 (S.D.N.Y. 2001). 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." Kumho Tire, 526 U.S. at 152.
B. Harkness' Proffered Expert Opinion
As a threshold matter, the court must examine Harkness' qualifications to testify about alternative coffee maker designs.See Fed.R.Evid. 702 (requiring a witness to be "qualified as an expert by knowledge, skill, experience, training or education"). Next, the court must apply the first prong of theDaubert inquiry by evaluating Harkness' methodology or the reasoning leading to his conclusions regarding the alleged defects in the West Bend Party Perk and the feasability of alternative designs. Daubert, 509 U.S. at 595. Assuming the evidence is reliable, courts apply the second prong of Daubert, which tests any reliable testimony for relevance to the question(s) at hand.Colon, 199 F.Supp.2d at 72.
C. Harkness' Qualifications
In assessing expert qualifications, "[l]iberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications." Lappe v. American Honda Motor Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y. 1994) aff'd 101 F.3d 682 (2d Cir. 1996) (expert qualified to testify on automobile design even though he did not design automobiles for a living). So long as the expert stays within the "reasonable confines of his subject area," the expert can fairly be considered to possess the "specialized knowledge" required by Rule 702. Id. (citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).
Harkness holds Doctorate and Master's degrees in mechanical engineering and is a licensed civil engineer. Harkness has over 40 years of experience in the design, analysis, manufacture, and testing of machinery, products, and systems. Pl. Ex. N. Included in this experience is the design and analysis of safeguards to prevent injury from hazardous products or machines. Id. Much of Harkness' design experience has focused on heavy machinery, such as large equipment for steel mills, the "first pass at the main coolant system for a nuclear reactor," and equipment to automate a bomb filling plant. Id.; Harkness Dep., Def. Ex. I at 16. Although Harkness' resume lists his product experience as including "small appliances," he has never designed a coffee maker, nor for that matter, any consumer products. Harkness Dep., Def. Ex. I at 14. Harkness' consumer product experience appears limited to the occasional safety evaluation for litigation purposes. In this context, Harkness has evaluated a 30-cup West Bend coffee urn of different design, as well as an iced tea maker and drip coffee maker. Id. at 21-25. Harkness is aware of the applicable Underwriter's Laboratories ("UL") standards for the West Bend coffee maker but has not read them in their entirety, nor did he appear familiar with their requirements at his deposition. Id. at 61-62.
The defendant takes issue with Harkness' experience because Harkness has never designed a consumer product, has not contributed to literature in connection with the design of consumer goods, does not participate in any standard-making activities as they relate to the design of consumer products, and is not familiar with the standards applicable to coffee makers or similar consumer products. However, these concerns do not preclude the admissibility of Harkness' testimony. Since Harkness has extensive experience in accident prevention and product safeguards, he clearly "possess[es] skill or knowledge greater than the average layman" concerning product safety, regardless of whether the product is a commercial or consumer product. Lappe, 857 F.Supp. at 227 (quoting Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3rd Cir. 1987)); Bunt v. Altec Indus., Inc., 962 F.Supp. 313, 318 (N.D.N.Y. 1997). Lack of familiarity with UL coffee maker standards, and experience with coffee maker design goes to the weight of Harkness' testimony, rather than the question of admissibility. Lappe, 857 F.Supp. at 226 (citingQuinton v. Farmland Industries, Inc., 928 F.2d 335, 226 (10th Cir. 1991)). Harkness has sufficient experience to qualify as an expert. Whether his opinion is ultimately admissible depends on the reliability and relevance of the proffered testimony.
D. Reliability of Harkness' Opinion on Alternative Designs
This court is mindful that the district court's role as a gatekeeper in screening out unreliable testimony is "tempered by the liberal thrust of the Federal Rules of Evidence and the `presumption of admissibility.'" Bunt, 962 F.Supp. at 317 (quoting Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995));Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (testimony is to be admitted unless purely conjectural). However, even considering this liberal standard of admissibility, Harkness' testimony fails to meet the test for reliability outlined in Daubert and, for the most part, does not meet other factors that have grown out of Daubert. Because the plaintiffs have not met the reliability prong of theDaubert test, Harkness' testimony on feasible alternative coffee maker designs must be excluded.
1. Testing
While testing is not an "absolute prerequisite" for an expert's theory of causation or alternative design to be admissible in a design defect case, "it is usually critical to show that an expert `adhere[d] to the same standards of intellectual rigor that are demanded in their professional work.'" Colon, 199 F.Supp.2d at 76 (quoting Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996)). "The presence of this factor in a design defect case also ensures that the focus of the jury's deliberation is on whether the manufacturer could have designed a safer product, not on whether an expert's proposed but untested hypothesis might bear fruit." Id. at 77.
Courts have repeatedly rejected expert testimony where a proposed theory or alternative design was not properly tested.See, e.g., American Foreign Ins. Co. v. General Electric Co., 45 F.3d 135, 139 (6th Cir. 1995) (rejecting expert evidence where expert did not establish protocol for tests, took no notes during testing, and was unsure whether equipment had been calibrated); Zaremba v. General Motors Corp., 360 F.3d 355, 359 (2d Cir. 2004) (expert offered no tests, models, calculations or drawings to illustrate that hypothetical alternative design would result in better performance of automobile); Brooks v. Outboard Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (excluding expert testimony where expert had not attempted to test theory that availability of a kill switch on motor boat would have lessened severity of accident); Oddi v. Ford Motor Co., 234 F.3d 136, 156-57 (3rd Cir. 2000) (excluding proffered alternative designs of biomechanical engineer where engineer had not tested design for a safer bumper on a truck);Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293 (8th Cir. 1996) (excluding evidence of alternative design where the plaintiff's expert had not designed or tested for safety or utility any of the proposed safety devices he claimed were missing from the defendant's machine).
The plaintiffs contend that Harkness offered four feasible alternative designs: (1) an anchored unit; (2) a pressure valve; (3) a gasketed top with two holes; and (4) a screw-lid design. Harkness conducted some basic testing on two of the four alternative designs he proposed. However, Harkness' methods are too incomplete, cursory, and undisciplined to provide reliable evidence that an alternative coffee maker design is feasible. The extent and reliability of Harkness' testing and evaluation of each proposed design is considered in turn.
a. Anchor Design
To prevent or minimize injuries from an overturned coffee maker, Harkness first proposed a design that would "anchor the coffee urn to the wall near the area where it is plugged into the outlet." Def. Ex. G at 5. Harkness did not provide any designs showing how this anchor design would look or function. Harkness Dep., Def. Ex. I at 67. Rather, Harkness merely states that there is industry precedent for an anchor design because "stoves are typically anchored to a wall." Def. Ex. G at 5-6. A coffee maker does not have the same qualities as a stove. While a stove remains in its location, as Harkness admits, a coffee maker would need to be unanchored from its location for the frequent tasks of cleaning and filling the coffee maker, as well as serving coffee at another location. Harkness Dep., Def. Ex. I at 67-69. Harkness did not point to any coffee maker that utilizes an anchor design or any industry standards or publications that have recommended such a design. Perhaps because no such design appears to exist, Harkness did not provide any data to indicate whether a purchaser of an anchored coffee maker would go to the trouble of installing the anchor into the kitchen wall and then reattaching the coffee maker to the anchor after each cleaning and filling. Indeed, even if such an anchor design were incorporated into the West Bend coffee maker, Harkness stated that there was no basis to assert that Mrs. Kass would have used such an anchor. Id. at 69; see Brooks, 234 F.3d at 92 ("Failure to test theory of causation can justify a trial court's exclusion of the expert's testimony.").
In apparent recognition of the impracticalities of his proposed anchor design, Harkness stated in his deposition that he would not recommend that West Bend design coffee makers with anchors.Id. Rather, Harkness stated that "[t]he only recommendation I would make to West Bend is to redesign the coffee maker to limit the amount of leakage you get out of them, in case the urn is overturned." Id. at 69. Harkness' failure to develop and test this alternative design or point to an existing model that is effective in preventing the accidental tipping of a coffee maker, supports the exclusion of evidence of the feasibility of the anchor design alternative. See Brooks, 234 F.3d at 92.
b. Pressure Valve Design
Harkness summarily stated in his report that "[one] approach to completely eliminate the hazard of spilled hot fluid by design would be to design the coffee urn as a pressure vessel and to fit the lid with a pressure relief valve. Though effective, this design choice results in a much more costly unit." Def. Ex. G at 7-8. Harkness did not provide any specific designs of a coffee maker utilizing a pressure valve system nor was Harkness aware of any other coffee makers which utilized a pressure valve design. Harkness Dep., Def. Ex. I at 80-81. Harkness was also unaware of the safety standards that apply to pressure cookers. Id. at 82-83. In estimating the added cost and design modifications required for such a unit, Harkness stated, "I think you could probably design the value within, say, the cost of 60 cents to a buck apiece in quantity, but you would have to do some other things. And I haven't studied what that would be." Id. at 81.
Harkness' failure to conduct any testing or provide any designs of his pressure valve concept supports the exclusion of Harkness' testimony concerning its potential feasibility. See Zaremba, 360 F.3d at 359. Moreover, in commenting on Harkness' pressure valve proposal, the defendant's expert, Robert Franke, noted that creating a coffee maker that utilizes a pressure valve system would present a host of accompanying design challenges.
A pressure vessel approach must contend with many other requirements and potential hazards such as the design configuration, material considerations, proper performance, venting of steam, potential blockage of venting, pressure reliefs, ease of use, including removal and replacement of cover, effect on rate of initial flow, effect on center of gravity, material fatigue, removal of cover under pressure, increased propensity for jerking and tip over, and potential cabinet, wall and outlet damage to name a few.
Def. Ex. L at 9. Harkness made no effort to assess the associated cost, design, and safety issues that would need to be addressed as part of the development of a feasible and practical coffee maker that utilizes a pressure valve design. Milanowicz v. Raymond Corp., 148 F.Supp.2d 525, 540 (D.N.J. 2001) (among other errors, plaintiff's expert did not provide any support for notion that proposed design would not adversely impact the utility of the product at issue). Harkness' testimony that a pressure valve design could be feasible is based purely on conjecture and must be excluded. Boucher, 73 F.3d at 21.
c. Gasket and Modified Top Design
As one alternative design, Harkness modified the subject coffee maker by: (1) applying a rubber foam seal around the circumference of the lid; and (2) drilling two 1/8 inch holes into the lid in line with the handle. Harkness Dep., Def. Ex. J at 126-30. The purpose of the first modification was to keep water in the coffee maker in the event it tipped. The purpose of the second was to allow steam to escape. To test the effectiveness of his prototype, Harkness turned the coffee maker over his sink a single time and let the water pour out. Id. at 130. Harkness did not measure the quality of water that came out of the lid, stating that it could be calculated using the Bernoulli theorem, which can be used to determine the velocity of a free jet of fluid emanating from a hole in the side of a container. Def. Ex. G at 4. However, if the coffee maker were rotated about its longitudinal centerline, water would emanate from only one of the two holes, changing the input variables into the Bernoulli theorem, and consequently, the rate of water flow. Def. Ex. H. Thus, Harkness' untested reliance on the Bernoulli theorem would appear to have limited predictive value in the present case, since the rate of water flow would depend on the manner in which the coffee maker was tipped.Aside from turning the coffee maker over a single time and observing the flow of water from the coffee maker, Harkness conducted no further testing. Harkness did not attempt to heat water in the modified coffee maker and evaluate whether the release of steam from the top two holes would affect the utility of the coffee maker.
The defendant points to numerous flaws in Harkness' methodology. The defendant notes that Harkness failed to: (1) identify the specific type of foam rubber used as gasket material; (2) measure the amount of gasket material used; (3) test whether the gasket material would have been appropriate for use in the coffee maker; (4) measure the amount of water that came out of the coffee maker during the test; (5) conduct the test more than once; (6) conduct the test under conditions similar to those under which the accident occurred. The plaintiffs assert that Harkness' development and testing of the prototype meet the standards for admissibility and that any questions as to the weight of Harkness' opinions are best left to a jury.
For expert evidence to be admissible, it must comport with the "same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. Harkness' minimal testing and development of his prototype, which leaves critical questions concerning its practicality and feasibility unanswered, does not comport with professional testing standards. Harkness' casual, improvised approach is evidenced by his failure to record the materials he used to develop the prototype, and his failure to test the prototype more than once. Even disregarding these shortcomings, the limited test Harkness did conduct offers no indication of the feasibility and practicality of his design. Rather, it only establishes that his prototype would limit the outflow of water if tipped. Simply demonstrating that the coffee maker can be modified to limit the rate of water flow does not address the effect of the modification on the functionality of the coffee maker. See Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 1997) (excluding expert testimony where expert did not make any drawings or perform any calculations to allow a trier of fact to infer that alternative design would have prevented accident without sacrificing utility).
"[W]hat might appear to be relatively simple design changes for the better can drastically alter a system's behavior by introducing failure modes not even possible in the original design." Colon, 199 F.Supp.2d at 79 (quoting Henry Petroski, "Reference Guide on Engineering Practice and Methods," Reference Manual on Scientific Evidence 586 (Federal Judicial Center 2000)). Despite the significant modifications Harkness made to the coffee maker's original design, Harkness did not bother to plug in his prototype and evaluate how it functioned under operating conditions. Harkness Dep., Def. Ex. J at 129. The defendant persuasively argues that the amount and velocity of steam that would emanate from the two small holes Harkness drilled in the lid of the coffee maker could have a severe impact on the safety and utility of the prototype coffee maker. Def. Ex. L at 7. As Harkness himself admitted, to properly evaluate his proposal, one would need to "make several lids and test [the drilled holes] at different distances, and you would put them out until the handle wouldn't get so hot that it would be uncomfortable to touch." Def. Ex. J, Harkness Dep. at 129. Despite recognizing the need for additional testing and the risk of harm from vapor emerging from holes in the lid, Harkness failed to develop lid alternatives or conduct any testing using hot water. Although Harkness did construct a prototype, his fundamentally incomplete testing does not support his conclusion that the prototype represents a feasible alternative coffee maker design.
d. Screw-Type Locking Lid Design
As another possible alternative design, Harkness points to the "[i]nterrupted screw tops for coffee containers produced by other manufacturers." Def. Ex. G, at 9. Harkness tested one of these products and determined that the water flow rate from this type of top was significantly less than the lid used in the West Bend coffee maker. Id. However, like the evaluation of his gasket prototype, Harkness did not evaluate how this top would function if incorporated into the West Bend coffee maker. As the defendant points out, the carafe used in Harkness' test was part of a different coffee making system. Unlike the West Bend Party Perk, it did not brew the coffee from within the container, but received already-brewed coffee. Def. Ex. L at 7. The subject West Bend coffee maker boils water within its carafe and is subject to a different set of design constraints, including pressure buildups. Despite this fundamental difference in function, Harkness did not evaluate whether the screw-type locking lid design is feasible for the subject coffee maker. Indeed, Harkness made no effort to reconcile these differences. Because the model Harkness evaluated involves entirely different design considerations than the Party Perk, there is no basis to conclude that this type of top presents a feasible alternative to the present design.
2. General Acceptance
Engineering is a field of applied science. Kumho, 526 U.S. at 148. It relies on the scientific method, which calls for the formulation of a hypothesis and then subjecting the hypothesis to tests designed to confirm or rebut the hypothesis. See Daubert, 509 U.S. at 590. Here, Harkness' hypothesis was that one of several alternative designs exists which would prevent a high rate of water flow from the subject coffee maker without significantly compromising the utility, cost, or safety of the existing product. Where he did test an alternative, Harkness stopped at the point where he determined that one could reduce flow rate from the coffee maker. To properly test his theory, Harkness also needed to assess how these modifications would impact the utility of the original design. Yet even in the single case where Harkness did develop a prototype, he did not attempt to operate the prototype under the conditions in which it would be used. This fatal oversight flies in the face of established engineering and scientific methodology. Indeed, Harkness' conclusions are unsupported by anything approaching the rigor associated with generally accepted testing protocols. Harkness' failure to comport with these principles further calls into question the reliability of his conclusions.
3. Peer Review
Whether or not the methodology and conclusions of the proffered evidence have been subject to peer review and publication can assist in assessing the reliability of the evidence because the "scrutiny of the scientific [or technical] community is a component of `good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected." Daubert, 509 U.S. at 593 (citation omitted). Harkness' proposed alternatives were not reviewed by colleagues in the engineering community nor did Harkness draw on relevant literature or applicable UL standards, of which he is only peripherally acquainted, to buttress his conclusions. Harkness also has not written or published any articles describing his proposed designs. As Harkness cannot point to any outside sources within the engineering community to validate his methodology or his conclusions, this factor also weighs against the reliability of his proffered evidence.
4. Non-Judicial Uses of Testimony
The defendant contends that the reliability of Harkness' testimony is colored by its exclusive litigation purpose. In evaluating the reliability of expert evidence, courts have considered the non-judicial uses to which the testimony has been put in order to assess its reliability. Elcock v. Kmart Corp., 233 F.3d 734, 745-56 (3d Cir. 2000); Colon, 199 F.Supp.2d at 90 n. 19 (noting that "[g]reater scrutiny is to be applied to a litigation opinion."). In the past four years, Harkness has been engaged in exclusively litigation related work, 90% on behalf of plaintiffs. Harkness Dep., Def. Ex. I at 12, 18. Harkness has not designed consumer goods, nor has Harkness contributed to literature on the safety or design of consumer goods. Indeed, Harkness has not even reviewed any such literature, or familiarized himself with the accident history or the professional safety standards for either coffee makers, or consumer products more generally. Compare Colon, 199 F.Supp. 2d at 90 n. 19 (in design defect case involving a cigarette lighter, plaintiff's expert had designed and tested propane torch and was awarded three separate patents covering spark ignition for fuel gas camp lanterns and torches). The fact that Harkness' opinions respecting coffee maker design have been applied exclusively in the litigation context further weighs against the reliability of his testimony.
E. Conclusion: Harkness' Expert Testimony Must Be Excluded
After a careful review of the factors set forth in Daubert and its progeny, the court concludes that the plaintiffs have not satisfied the reliability prong of the Daubert test. While the plaintiffs contend that any flaws in Harkness' testimony should go to the weight of the proffered evidence, rather than its admissibility, there is simply too great an analytical gap between Harkness' unreliable methodology and untested theories and the conclusions he reaches in his report. Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Although there is a dearth of case law where prototype evidence is offered and deemed insufficient, this is one such case. Daubert and Rule 702 mandate the exclusion of Harkness' testimony on feasible alternative coffee maker designs.
III. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A. Governing Law
New York conflict of law principles apply to this diversity action. See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 175 (2d Cir. 2000). New York courts have formally employed the "traditional, `territorially oriented' approach to choice-of-law issues, which applied the law of the geographic place where one key event occurred, such as the place of the wrong in tort cases, or where an agreement was entered into or performed in contract cases." Istim, Inc. v. Chemical Bank, 575 N.Y.S.2d 796, 798 (1991). More recently, however, New York courts have recognized that "[a] State may lack sufficient nexus with a case so that choice of its law is arbitrary or fundamentally unfair," and have abandoned these rigid rules in favor of a more flexible approach. Cooney v. Osgood Mach., Inc., 595 N.Y.S.2d 919, 921 (1993). Under this more flexible "interests analysis" approach, New York courts seek to apply the law of the jurisdiction with the more significant interest in, or relationship to, the dispute. White v. Abco Engineering Corp., 221 F.3d 293, 301 (2d Cir. 2000); AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992). "In deciding which state has the prevailing interest, we look only to those facts or contacts that relate to the purpose of the particular laws in conflict. `Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort.'" AroChem Int'l, 968 F.2d at 270 (quoting Schultz v. Boy Scouts of America, Inc., 491 N.Y.S.2d 90, 95 (1985)).
New Jersey products liability law governs this dispute despite both parties' unexplained assumption that New York law applies to the instant action. As set forth in the plaintiffs' complaint, the plaintiffs reside in New Jersey and New Jersey is where Sarah Kass' injury occurred. The defendant is incorporated in Delaware and has offices in Wisconsin. Plaintiffs purchased the coffee maker in New York at Duddy's Electronics and Appliance Center. Duddy's is not a party to this action. As both the location of the accident and the state of the plaintiffs' residence, New Jersey has the most significant interest in resolving this dispute.
B. Standard for Summary Judgment in Federal Court
A court may grant summary judgment only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a motion for summary judgment, the court must construe the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). However, neither conclusory statements, conjecture, nor speculation suffice to defeat summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
C. Strict Liability Claim
Under New Jersey's product liability law, a plaintiff who asserts a design defect products liability claim "must prove under a risk-utility analysis the existence of an alternative design that is both practical and feasible." Lewis v. American Cyanamid Co., 155 N.J. 544, 571 (1998); see also N.J.S.A. 2A:58C-3(a)(1) (a manufacturer may not be held liable in a design defect product liability action if "[a]t the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product.").
New York product liability law is analogous to that of New Jersey. Voss v. Black Decker Mfg., 463 N.Y.S.2d 398, 402 (1983) (plaintiff must "present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner."). Thus, the outcome of the defendant's motion would be the same regardless of which state's substantive law is applied.
As already determined, plaintiffs' proffered expert evidence is excluded because it does not meet the requirements of Federal Rule of Evidence 702. Plaintiffs offer no additional evidence to assert that an alternative coffee maker design exists that is both practical and feasible. Accordingly, the defendant's request for summary judgment on plaintiffs' strict liability claim is granted.
The court has reviewed the other claims that defendant argues also justify summary judgment. In particular, the court notes that the plaintiffs no longer possess the subject coffee maker and that the plaintiffs do not recall whether the lid to the coffee maker was locked onto the coffee maker either before or after it fell. However, because the plaintiffs' failure to demonstrate the existence of a feasible alternative design merits summary judgment, the court declines to address the remainder of the claims raised by the defendant.
D. Negligence Claim
The plaintiffs also proceed under a theory of negligence. Under the New Jersey Products Liability Act, N.J.S.A 2A:58-C1 et seq. (" PLA"), the causes of action for negligence, strict liability, and implied warranty have been consolidated into a single product liability cause of action, the essence of which is strict liability. N.J.S.A 2A:58-C1; Green v. General Motors Corp., 310 N.J.Super. 507, 517 (1998). Thus, in a product liability action, there is no separate cause of action grounded in negligence. Grzanka v. Pfeifer, 301 N.J.Super. 563, 577-78 (1997). In both cases, "the issue upon which most claims will turn is the proof by plaintiff of a `reasonable alternative design . . . the omission . . . [of which] renders the product not reasonably safe.'" Green, 310 N.J.Super at 517-18 (citing Restatement (Third) of Torts: Products Liability § 2(b)). As the plaintiffs' negligence and strict products liability claims rest upon the same showing, the defendant's motion for summary judgment on the plaintiffs' negligence action is likewise granted.
Similarly, for the purposes of analyzing a design defect claim under New York law, the theories of strict liability and negligence are virtually identical. Colon, 199 F.Supp.2d at 83 (analyzing plaintiffs' negligence and strict liability claims for a design defect case under a single test) (citing Searle v. Suburban Propane Div. of Quantum Chem. Corp., 700 N.Y.S.2d 588, 591 (2000)). Thus, this court's determination of plaintiffs' negligence action would be identical were New York law to apply to this action.
E. Breach of Warranty
Plaintiffs also bring a breach of warranty claim which the defendants argue is barred by the four-year statute of limitations of Uniform Commercial Code ("UCC") § 2-725(1). Under UCC 2-725, the general rule is that the statute of limitations for a cause of action based upon a breach of warranty accrues at the time of original sale. See UCC § 2-725(2); N.J.S.A. 12A:2-725. Here, the subject coffee maker was purchased in August or September, 1991 and the accident occurred on September 10, 1999. The plaintiffs concede that this period exceeds the UCC statute of limitations but assert, without support, that the warranty should commence at the time of injury, not at the time the product is tendered. This theory is contrary to both the text of the UCC and New Jersey state law. UCC § 2-725(2); N.J.S.A. 12A:2-725. Defendant's motion for summary judgment is therefore granted as to the plaintiffs' breach of warranty action.
See also Doyle v. Happy Tumbler Wash-O-Mat, Inc., 457 N.Y.S.2d 85, 88 (1982) (statute of limitations under New York law accrued "at the time of the original sale by the manufacturer . . . regardless of when the injury was sustained.") (citations omitted).
IV. CONCLUSION
There is no question that Sarah Kass was seriously and tragically burned by hot water from an overturned coffee maker. However, liability does not attach to a manufacturer solely by virtue of the fact that an accident occurred. The plaintiffs do not remotely demonstrate that there was a feasible alternative coffee maker design that would have prevented Sarah's injuries. Proffered expert evidence that such alternatives exist is based solely on conjecture and uninformative, cursory testing that betrays an utter disregard for the rigors of the scientific method and product testing methodology. Based on Federal Rule of Evidence 702 and the factors outlined in Daubert and its progeny, the court grants the defendant's motion to exclude the testimony of the plaintiffs' expert, Dr. Harkness. Absent any evidence of a feasible alternative design, the court grants the defendant's request for summary judgment on the plaintiffs' strict liability and negligence claims. Summary judgment is also granted on the plaintiffs' breach of warranty claim, which is barred by the applicable statute of limitations. The Clerk of the Court is directed to close the case.
SO ORDERED.