Summary
precluding proposed expert testimony on summary judgment motion
Summary of this case from Fernandez v. Central Mine Equipment Co.Opinion
97-CV-1944 (ILG).
March 4, 2001
CORRECTED MEMORANDUM ORDER
The plaintiff was severely burned when the vehicle in which he was riding as a passenger collided with another and burst into flames. He seeks to recover for the harm he sustained from the defendant, the manufacturer of the vehicle alleging causes of action sounding in negligence, strict liability and breach of warranty.
Simply stated, the facts are that the plaintiff was riding in a 1992 Dodge Shadow owned and operated by his then girlfriend (they were subsequently married) on March 12, 1996. The driver attempted to turn left from Broadway onto North Nassau Avenue in the Town of Oyster Bay in Suffolk County, New York, and collided with another vehicle coming from the opposite direction on Broadway. The car burst into flames and the plaintiff was severely burned.
The defendant has moved this Court for an order pursuant to Rule 702, Fed.R. Ev. that would preclude the plaintiff's expert, Grahme Fischer, from testifying at the trial of this action on the ground that he fails to meet the prerequisites for receiving expert testimony prescribed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 137 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); for an order that would grant summary judgment in its favor; and for an order pursuant to Rule 15(a) Fed.R.Civ.P. that would permit it to amend its answer to add the affirmative defense of statute of limitations that would bar the breach of warranty claim.
I. The Motion to Preclude
The expert proffered by the plaintiff is Grahme Fischer. He is the owner and sole shareholder of Technical Problem Solvers, Inc., an engineering services firm primarily involved with forensic engineering. Fischer Deposition at 41-42 (G.F. Dep.). He is a graduate of Brooklyn Technical High School, Manhattan College, B.M.E. and Columbia University, M.S. in M.E. He has never taken a course relating to airbag design, testing or manufacture (G.F. Dep. at 39). He never evaluated the design of any portion of the vehicle (G.F. Dep. at 7) but nevertheless "formed an opinion that there was a defect in the car and I did not carry that investigation through to the point of determining whether that defect was a design defect or a manufacturing defect or a combination thereof." (G.F. Dep. at 8). This response, conveying as it plainly does, that whatever opinion he will ultimately express as to the cause of the fire would be imaginatively speculative, without more, would compel granting the motion to disqualify this witness. There is, however, considerably more that would drive the Court to that conclusion and based entirely upon his deposition testimony which will be set out in some detail.
The relevant portion of his testimony in this regard is enlightening:
Q. Have you ever taken any courses relating to airbag design testing or manufacture?
A. What do you mean by courses?
Q. Taken any courses that . . .
A. What do you mean by course?
Q. Course in a university
A. No
Q. Have you taken any courses in a non-university setting dealing with airbag design, manufacture or testing?
A. What do you mean by courses?
G.F. Dep. 39/6-17.
His expressed opinion was that it was a defective airbag that contributed to the fire in some way and then:
Q. Can you tell us the nature of the defect in the airbag that you found?
A. I did not personally observe a defect in the bag. I know that a defect of the bag existed because of the behavior and performance of the airbag system.
* * *
Q. Okay, can you tell us what about the behavior and performance of the bag led you to the conclusion that there was a defect?
A. Let me expand on your last — adding to my answer, when I say the bag, I mean the process of containment of gases within the bag. So that it could be the way in which the bag was secured to the container that could have been defective. But in my opinion, the defect is that entire process, most of which is the bag itself. But the edges of the bag were — need to have been attached to its container properly in order to contain the gases within the bag as intended. It's that the failure of the bag and its attachment system that occurred.
G.F. Dep. at 12-13 (emphasis mine).
He did not conduct any test to confirm his conclusion that an airbag malfunction caused the fire (G.F. Dep. at 52), and when asked "According to your theory, what caused the airbag to malfunction?" he replied, "I don't know." (G.F. Dep. at 62). When asked: "Is your theory that the airbag caused the fire based upon any assumptions?" He answered, "Yes" and then "Can you tell us what assumptions your theory is based on?" he replied, "I would have to think about that at some length." (G.F. Dep. at 69).
It is interesting, if not remarkable, to note that it was not until his deposition that he learned that a punctured can of WD-40 lubricant was found under the driver's seat, never evaluated the possibility that it might have been the cause of the fire (G.F. Dep. at 93-94), and in fact had no knowledge that WD-40 was flammable. (G.F. Dep. at 90).
Perhaps the most telling aspect of the testimony of this witness which requires this Court to discharge its gatekeeping function and preclude him from giving testimony at the trial of this case is that given his opinion that it was a defective airbag that caused the fire, his deposition reveals the following:
Q. Were there any tears in the airbag?
A. I do not remember inspecting the airbag. It was there and I don't know that at the time when I was there at my inspection, that I thought the airbag was the culprit at the time.
G.F. Dep. at 113.
Having opined that the fire was caused by a very high temperature gas that escaped from the airbag (G.F. Dep. at 122), he then testified that "a tear or cut in the airbag, that would create a hole that would allow escape of high-pressure, high temperature gases;" if "the termination points of the bag as it's attached to the container was not properly secured and there was a gap that allowed the high-pressure gases to escape from there;" "Another way would be if as the fabric, as the bag was being constructed, if somebody used the wrong porosity fabric or inadequate numbers of layers of fabric or something that would change the normal resistance of the bag to having gases flow through it, to a segment of structure of the bag where gases could readily flow through it, that's another way it occurs;" "Another way might be a folding error in packaging the bag. . . ." And then:
Q. Sir, do you have any factual support or data to show that the airbag was not properly secured to the container in this particular accident?
A. I have no information no factual data to differentiate among these different interpretations and others which I may not have mentioned.
Q. But I mean specifically that potential, specifically the potential that the airbag and container were not properly secured, you have no factual support as we sit here today?
A. That is correct.
Q. As far as the use of improper fabric on the airbag, as we sit here today do you have any factual support for that theory?
A. No.
Q. Do you know what material the airbag in the 1992 Dodge Shadow is composed of?
A. No.
Q. You didn't look into that issue for you analysis in this case?
A. Correct.
Q. As we sit here today, do you have any factual support for the possibility that there was an error, folding error in the folding of this airbag at the time of manufacture?
A. No, I do not.
G.F. Dep. at 122-124.
Further, in his deposition he testified that he did not know whether the airbag was burned through in any area and when asked:
Q. Isn't that a fact that it would be important in your analysis of this case?
A. I don't offhand I don't know the answer to that. It doesn't strike me as obvious one way or the other, right now, that it would be important. It could be, it might not be.
Q. If there was a significant fire to the point that it burned a hole in the bag, isn't that something you would like to know in your analysis?
* * *
A. I guess I would like to know about it because it would be . . . it could be corroborating this theory. But I would not expect it. But I guess it would be nice to know.
Q. Do you know what the gas generant constituents are in the driver's side airbag prior to deployment?
A. You mean do I know what the chemistry is going on there?
Q. Yes.
A. No.
G.F. Dep. at 129.
It is also important to note that Mr. Fischer eliminated the potential for sparks from cigarettes, matches or lighters (G.F. Dep. at 168) although, not having known of the presence of a can of WD-40 lubricant, it is fair to infer that he had no knowledge of the existence of matches, or lighters, or cigarettes. See G.F. Dep. at 73.
Significant, too, is the following colloquy:
Q. Do you hold any patents?
A. No.
Q. Have you published any technical articles?
A. Yes.
Q. Are they included in your resume?
A. No.
Q. Can you tell us what subjects they dealt with?
A. What do you call publication?
Q. An article that is presented to some organization that publishes it in the public domain.
A. Well . . .
Q. Sir, have you had published any peer review technical articles relating to airbag design or performance?
A. No.
Q. Have you published any peer review articles relating to fire cause and origin?
A. No.
Q. Have you ever worked for a manufacturer of airbag systems?
A. No.
Q. Have you ever worked for a manufacturer of automobile restraint systems?
A. No.
Q. Have you ever been retained in a case prior to this to evaluate the performance of an airbag and render an opinion whether or not it was defective?
A. No.
* * *
Q. Are you certified as an arson investigator?
A. I don't have any certification other than certificates attesting to my attendance at various seminars.
Q. Did you have any college courses dealing with fire investigations?
A. No.
Q. Ever work with a fire department?
* * *
A. No.
Q. . . . You have never worked for a police department or a fire department as a fire investigator.
A. Correct.
G.F. Dep. 171-175.
Mr. Fischer's "expertise" is wide ranging. He has testified as an expert in one or possibly two cases involving bicycles; ladders; various types of presses; coefficients of friction of floors in "slip and fall" cases; brake machines; possibly lawn mowers and many, many different kinds of machines and machine systems."
G.F. Dep. 175-177.
Discussion
The controlling principles guiding the disposition of this motion are by now, so familiar that an extended discussion of them would be an affectation of research. The testimony set out above brings to mind res ipsa loquitur — the [testimony] speaks for itself, notwithstanding an awareness that the purist would frown at the questionable applicability of that rule of evidence in this context. Trial courts have been instructed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) to make certain that testimony based upon scientific knowledge or upon technical and other specialized knowledge is reliable and not speculative. That Mr. Fischer's testimony is both unreliable and speculative is beyond cavil. He never inspected the airbag he opines was the cause of the fire. He never spoke with or even read the sworn testimony of the plaintiff or the driver of the car but is nevertheless prepared to render his opinion as to the cause of the plaintiff's injury. (G.F. Dep. at 17). He had no knowledge of the fabric from which the airbag was made, whether it was properly affixed to its container, whether it was properly folded before being so affixed but is nevertheless willing to testify that the airbag was the cause of the fire. He had no knowledge of the fact that Mr. Mannix had a bricklayer's hammerhead in the car (G.F. Dep. at 94-95); that there was a punctured can of WD-40 lubricant in the car or whether WD-40 was flammable.
It was precisely this kind of "junk science-engineering" testimony that was at long last brought to the attention of the Supreme Court for its consideration, which it aimed at in Daubert and Kumho and effectively hit. The injustice which may be suffered by and the havoc wreaked upon either party to a law suit by such testimony having no relation to the facts other than the ipse dixit of the "expert" has been commented upon long ago in Rubenstein v. Marsh, No. CV-80-0177, 1987 WL30608 at 7 (E.D.N.Y. 1987).
The motion to preclude the testimony of Grahme Fischer is, for the reasons given, granted.
The Defendant's Motion for Summary Judgment
The criteria by which a motion for summary judgment is determined have been stated and re-stated countless times and to do so again would unnecessarily belabor this opinion. It will, I believe, suffice to cite the trilogy of cases which have defined those criteria. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) and Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986). What has been written since is merely commentary.
The plaintiff's statement of material facts in accordance with Local Rule 56.1 in which, he contends, there exists a genuine issue to be tried depends in its entirety on Mr. Fischer's airbag theory. That theory having been found to be supportable by nothing other than speculation, the plaintiff has no evidence to support his claim that amounts to nothing more than that he was injured in a car manufactured by the defendant. Brooks v. Outboard Marine Corp., 234 F.3d 89 (2d Cir. 2000). The law has not yet spread its benevolent protection that far. "Proof of negligence in the air, so to speak, will not do." Pollock, Torts (11th ed.) p. 455 cited in Palsgraf v. Long Island Railroad, 248 N.Y. 339 (1928).
The conclusion that summary judgment is warranted, indeed compelled, by the preclusion of testimony by Grahme Fischer is buttressed by the uncontroverted deposition testimony of several others which will be briefly described.
Michael Cassidy was in his 30th year as an employee of Chrysler Corporation at the time he was deposed in 1998. He was by then a product analyst, senior specialist for 12 years. He has a bachelor's degree in electrical engineering and has worked extensively with airbag engineers and safety personnel. He testified that there is nothing in the airbag that can cause a fire (Cassidy Dep. at 18). In that deposition and in a letter dated March 23, 2000 (Ex. V W to defendant's notice of motion) he stated that having personally inspected more than 500 airbag incidents in Chrysler vehicles he never saw an airbag cause heat or fire damage to a vehicle and stated specific reasons for his conclusions, among them being that gas vented from an airbag is never enough either in temperature or volume to cause a fire or melting to the interior of the vehicle.
Robert Banta, a senior engineer in the Product Analysis Department of Chrysler testified that an inspection of the vehicle revealed no evidence of burns inside the bag, a partially burned and externally punctured aerosol can of WD-40 lubricant under the driver's seat together with lighters, books of matches and a sharp pointed steel head of a bricklayer's hammer. (Ex. X, Def's. Notice of Motion).
Dennis A. Guenther, a project engineer with FTI/SEA Consulting, submitted a report annexed as Exhibit Y to defendant's Notice of Motion. He earned a Bachelor of Science Degree in Mechanical Engineering from Purdue University and a Master of Science and Doctor of Philosophy Degree from Ohio State University. He has been involved with airbag analysis and development since 1982 and has published more than 180 technical publications. His detailed report after an examination of the vehicle led him to conclude that "the airbag system . . . performed as designed in this accident and did not cause the fire inside the [vehiclel as alleged by the plaintiff."
A similar conclusion was reached by Robert D. Beauchamp in a report marked as Exhibit Z and an affidavit marked Exhibit AA to defendant's Notice of Motion. Mr. Beauchamp is a fire investigator who was a member of a fire department for 25 years, a fire marshal for 12 years and a battalion chief for 15 years.
The conclusions reached by each of those highly qualified persons supported by the factual data compiled after an inspection of the vehicle and its component parts stand in stark contrast to the conclusion reached by Mr. Fischer that is supported by a theory that is "as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had been starved to death."
Conclusion
The defendant's motion to preclude the testimony of Grahme Fischer is granted as is its motion for summary judgment.
SO ORDERED.