Summary
rejecting testimony where there was no data, testing methodology, or empirical evidence and therefore no means of measuring the reliability
Summary of this case from Faryniarz v. Nike, Inc.Opinion
No. 99 Civ. 4780 (LTS)(KNF)
May 22, 2002
MEMORANDUM OPINION AND ORDER
Defendants NT Dor-O-Matic New York, Inc. ("Dor-O-Matic"), 866 3rd Next Generation Hotel LLC and Courtyard Management Corp. (with Dor-O-Matic, "Defendants") have made timely motions in limine, pursuant to Federal Rules of Evidence 104(a) and 702, to exclude from the evidence to be admitted at trial the testimony of Harold A. Krongelb ("Krongelb"), an engineering consultant who has been designated by Plaintiff Rose Stone ("Plaintiff") as an expert witness. This case involves a claim to recover damages for injuries allegedly sustained when Plaintiff fell while entering a Courtyard Marriott hotel through automatic doors. Having rendered an opinion denying in part and granting in part Defendants' motions for summary judgment, the Court presumes readers' familiarity with the facts in this case.
Krongelb prepared two reports in connection with this case. The first is dated June 11, 1999 (the "1999 Report") and the second is dated October 17, 2000 (the "2000 Report"). The 1999 Report concludes: "based on our observations and the description of the event and to a reasonable degree of engineering certainty, the proximate cause of the injuries sustained by Rose Stone was the negligent maintenance of the automatic sliding door that closed as she was passing through the door."
The 2000 Report purports to analyze the deposition testimony of a Dor-O-Matic witness concerning the initial installation and testing of the doors in question, and concludes: "the proximate cause of the improper operation of the doors and subsequent injury to Rose Stone was the failure of the door installers and whoever tested the door to ensure that all safety mechanisms were adjusted and operated to ANSI specifications."
Defendants contend that Krongelb's testimony should be excluded because the foregoing conclusions are contradicted by his direct observations of the automatic doors and because his conclusions are not supported by appropriate methodology.
The Court has considered thoroughly all submissions and arguments related to this motion and the decision here rendered reflects such consideration. For the following reasons, Defendants' motion in limine is granted in part and denied in part.
DISCUSSION
Defendants seek to bar Krongelb's testimony, asserting that his opinions, as set forth in the 1999 Report and the 2000 Report, fail to meet the standards for admissibility of scientific or technical testimony established by Federal Rule of Evidence 702 and as elucidated by the Supreme Couit of the United States in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
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.
Fed.R.Evid. 702 (West 2002). The Rule requires that the trial court 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."Daubert, 509 U.S. at 592-93. "Its overarching subject is the scientific [or technical] validity and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission." Id. at 594-95. The proponent of the evidence must demonstrate admissibility to the satisfaction of the Court under Rule 104(a) by establishing scientific or technical reliability by a preponderance of the proof. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); Falise v. American Tobacco Company, 107 F. Supp.2d 200, 203 (E.D.N.Y. 2000). Matters of exclusion or inclusion of evidence pursuant to Rule 702 are left to the broad discretion of the trial court.See Zuchowitz v. United States, 140 F.3d 381, 386 (2d Cir. 1998).
Expert testimony should assist the jury in understanding the evidence or determining a fact in issue. See United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993). In assessing admissibility, the Court must determine whether the proffered expert testimony is relevant, that is, whether it "ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," Fed.R.Evid. 401 (West 2002), see Daubert, 509 U.S. at 587, and whether the proffered testimony has a sufficiently "reliable foundation" to permit it to be considered, id. at 597. Indeed, the Court must "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589; see Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000).
The Daubert Court identified several factors to be considered in determining whether a proposed submission is sufficiently reliable under Rule 702. These include whether the theory or technique offered can be tested; whether it has been subjected to peer review and publication; what the known or potential rate of error is; and whether it is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 592-595. Whether the proffered testimony is scientific or technical in nature, the Court must "consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Kumho Tire, 526 U.S. at 152.
The 1999 Report
Although facially relevant to the causation question in this case, Krongelb's 1999 Report lacks any basis to enable the Court to conclude that the opinion expressed therein is the product of reliable scientific or technical methodology. The 1999 Report does not contain any objective data regarding the actual conditions under which the accident occurred on the date in question. Furthermore, Krongelb admits in that Report that his analytical methodology failed to produce any evidence of malfunction. He states that he walked through the doors in "excess of 25 times and stopped or slowed down significantly each time in an area where a door could hit if it should close. At no time was there any evidence of malfunction of the doors."
Because "knowledge connotes more than subjective belief or unsupported speculation,'. . . there is no reliable foundation for [Krongelb's] expert opinion [in the 1999 Report]." Grdinich v. Bradlees, 187 F.R.D. 77, 82 (S.D.N.Y. 1999) (quoting Daubert, 509 U.S. at 590). "Proposed testimony must be supported by appropriate validation — i.e., `good grounds,' based on what is known. In short, the requirement that an expert's testimony pertain to `scientific knowledge' establishes a standard of evidentiary reliability." Daubert, 509 U.S. at 590.
A brief review of the Daubert factors makes it clear that the evidence proffered here lacks the requisite evidentiary reliability. No data, testing methodology or empirical evidence is offered to support Krongelb's conclusions. Indeed, the opinion is presented in an entirely conclusory manner — Krongelb opines, without proffering any specific technical or scientific information as to basis of his opinion, that the accident was caused by negligent maintenance of the automatic doors. The 1999 Report provides no basis upon which Krongelb's hypotheses can be tested. Cf. Daubert, 509 U.S. at 593. Nor does the 1999 Report cite any published authority in support of its conclusions, much less proffer any evidence of peer review of the causal theory. Cf. id. Standards and error rates are impossible to assess based on the information set forth in the 1999 Report (cf. Id.) and there is no information proffered from which the Court could gauge general acceptance of Krongelb's methodology, since he offers no methodology at all (cf. id.). The proffer thus fails all of the reliability measures outlined by the Supreme Court in Daubert. See Mink Mart, Inc. v. Reliance Insurance Co., 65 F. Supp.2d 176, 180-181 (S.D.N.Y. 1999) (citing Kumho Tire, 526 U.S. at 157, "[n]othing in either [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579] 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.").
The 2000 Report
The 2000 Report recites that it is based on Krongelb's review of the deposition transcript of Michael Trezza, a Dor-O-Matic employee, the New York City Building Code, ANSI standards concerning the operation of automatic doors and information taken from Dor-O-Matic's website, and proffers two conclusions.
Improper Testing
Based on his review of Mr. Trezza's deposition and ANSI standards, Krongelb concludes that the doors were improperly tested at the time of their installation. This aspect of the 2000 Report is arguably relevant to the question of Defendants' proper testing of the doors and thus, to the issues of constructive notice and/or defect. Because this aspect of the 2000 Report cites specific data (the ANSI specifications applicable to the operation of automatic doors and Mr. Trezza's deposition testimony concerning his tests of the safety devices in the automatic doors), the Court finds that the Report, insofar as it relates to the tests conducted when the doors were installed, contains sufficient indicia of reliability to withstand Defendants' challenge under of Federal Rule of Evidence 702.
Causation
Krongelb's opinion on the issue of causation of the accident in the 2000 Report, however, is wholly speculative and conclusory. Krongelb concludes in the 2000 Report that "[i]t is our professional opinion, within a reasonable degree of engineering certainty, that the proximate cause of the improper operation of the doors and subsequent injury to Rose Stone, was the failure of the door installers and/or whoever tested the door to insure that all of the safety mechanisms were adjusted and operated to the ANSI specifications." The Report contains no objective data concerning the testing or adjustment of the automatic doors at the time of the accident or information concerning the operation of the doors at that time. Nothing in the 2000 Report draws a connection between the alleged improper testing at the time the doors were installed and the circumstances of the accident, which occurred some 8 months later. Nor does the Report even purport to explain how the alleged testing deficiency could have caused the accident. Because the 2000 Report contains no explanation as to the methodology Krongelb employed to reach his conclusions concerning the cause of the accident it is not possible to test Krongelb's theory as to causation. Thus, under Daubert, there is no means of measuring the reliability of Krongelb's conclusion that improper safety adjustments caused Plaintiff's accident. Accordingly, the portion of the 2000 Report concerning causation of the accident and Krongelb's testimony relating thereto is not admissible.
Whether the Reports are More Probative than Prejudicial
In assessing the admissibility of expert opinion, the Court must weigh its probative value against the danger of unfair prejudice, confusion of the issues, misleading the jury, or waste of time. See Federal Rule of Evidence 403 (West 2002). Because the causation opinions in the 1999 Report and the 2000 Report are used on assumptions and speculation, without presenting objective scientific, technical or factual foundation as to the conditions that may have existed at the time of the accident or the analytical method employed in forming the conclusions presented, any probative value of the causation opinions in those Reports is substantially outweighed by their potential for unfair prejudice, confusion of the issues and misleading the jury. The Court reserves until trial the issue of whether that part of the 2000 Report concerning the initial testing of the automatic doors should be excluded pursuant to Rule 403.
Daubert Hearing
A court may hold a pretrial evidentiary hearing pursuant to Federal Rule of Evidence 104(a) to determine whether expert scientific (or other specialized) testimony is reliable under Daubert. The decision whether to hold a hearing rests within the discretion of the court. See Colon v. BIC USA, No. 00 Civ. 3666, 2001 WL 1631402 at *7 (S.D.N.Y. Dec. 19, 2001). The Court has concluded that such a Daubert hearing is not necessary here because, as to causation, neither Report presents any scientific or technical methodology whose reliability could be examined in the context of such a hearing and, as explained above, the information presented in the 2000 Report as to alleged testing deficiencies is sufficient to meet the Rule 702 criteria.
Constructive Notice
Defendant Dor-O-Matic asserts that the case should be dismissed as against it. The Court has already concluded that the question of constructive notice remains for trial. (See Rose Stone v. 866 3rd Next Generation Hotel, LLC et al., No. 99 Civ. 4780, slip op. (S.D.N Y March 29, 2002)).
CONCLUSION
For the foregoing reasons, Defendants' motions in limine are granted to the extent that they seek to exclude testimony of Harold A. Krongelb based on the 1999 Report and to the extent that his testimony relative to the subject matter of the 2000 Report concerns causation of the accident. The motions are denied to the extent they seek to preclude Mr. Krongelb from testifying about the propriety of safety tests conducted at the time the automatic doors were installed. The issue of whether such testimony is relevant under Federal Rule of Evidence 401 and/or excludable under Federal Rule of Evidence 403 is reserved for trial.
SO ORDERED.