Hilaire v. Dewalt Indus. Tool Co.

54 F.Supp.3d 223

Cleant HILAIRE, Plaintiff

v.DEWALT INDUSTRIAL TOOL CO., Defendant.

No. 10 CV 5071ILG.

United States District Court, E.D. New York.

Signed Oct. 8, 2014.

Pat J. Crispi, Keogh Crispi P.C., New York, NY, for Plaintiff.

Michael Kim Berman, Michael K. Berman, Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Pending before the Court are objections to an extensive Report by Magistrate Pollak and her Recommendation (R & R), which that Report essentially compelled that the defendant's motion for summary judgment and to preclude the testimony of the plaintiff's proposed liability expert be granted.

The event that gave rise to this action is the severance of a portion of the plaintiff's left hand while he was attempting to cut wood using a table saw manufactured by the defendant. He alleges that the table saw was defectively designed and did not contain adequate warnings and that his serious injuries were caused entirely by the negligence of the defendant.

Sought to be excluded is the testimony of one “liability expert” proposed to be offered by the plaintiff who will opine that the saw was defectively designed and that warnings of potential danger inherent in its use were inadequate.

In a motion to preclude an expert from testifying, a court plays the role of a gatekeeper—determining whether he should be permitted to pass through the testimonial gate or whether that gate should remain closed to him. In making that determination, the court is guided by two seminal cases, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The rest (thousands of cases which followed in their wake), is commentary. Those cases teach that the discharge of the gatekeeping responsibility requires an answer to two questions: (1) is the proposed expert qualified to testify by virtue of his specialized “knowledge, skill, experience, training or education?” Fed. R. Ev. 702 ; and (2) if deemed qualified, is his testimony reliable and will it assist the fact finder in deciding the issue? Both questions must be answered in the affirmative if the testimonial gate is to be opened. Magistrate Judge (MJ) Pollak's 48 page R & R is a virtual monograph on the law governing that determination in all of its nuances.

The facts to which the law was to be applied were meticulously distilled from the report of the testimony the proposed expert, Mr. Lewis Barbe, would give and from his deposition. A summary of the expert's qualifications gleaned from his resumé is as follows:

He has a Bachelor of Science degree from the Illinois Institute of Technology in Fire Protection and Safety Engineering. He has consulted as a “licensed safety engineer” for more than 35 years. He is registered and “certified” as a safety engineer in several states and by a number of Boards identified as C.S.P., C.P.S.M., C.H.C.M., H.S.P. with little or no information as to the qualifications for membership in or function of them. He is employed by 3 companies as a “Risk Manager” in one, and a “Safety Engineer” in another. Whether he has responsibility for designing products or for assessing products for safety and performance is unclear. His resumé reflects that he has taught safety engineering and compiled a reference manual for OSHA. He could remember only one article he wrote that was published. He is a “participating member” in various professional organizations that develop safety standards for various products and industries. He stated that he is applying for a patent on a safety device to be used on table saws and portable table saws, but for reasons of confidentiality refrained from discussing its details.

He testified on deposition that he testified at approximately 100 trials, was deposed approximately 400–500 times and was unable to recall any case in which he testified for a defendant. He has no training or experience in designing table saws. He has neither lectured on nor taught courses on the design or manufacture of table saws. He never owned a table saw, only used one within the last 2 years, and never worked as a carpenter. His report concluding negligence in design and manufacture given the many safety devices and safety technology available but not used on the offending saw is confidently asserted despite his admission that he never saw a marketed table saw equipped with the safety devices and the technology he describes; nor has he ever designed table saws incorporating those safety devices. His qualifications as discerned from his resumé and deposition testimony that has any relevance to the issue in this case is extensively discussed in the R & R at pages 231–33 and 235–42. In the light of that discussion the MJ's recommendation, albeit made reluctantly, that he is “barely” qualified to testify, is magnanimously charitable.

The balance of the R & R, pages 242–53, can only be described as an incisive, logical analysis of the proposed expert's qualifications which compels the conclusion that they are patently inflated and that his proposed testimony is based on facts, methods and principles which are insufficient and unreliable and which will provide no meaningful help to “the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Ev. 702(a) -(c).

The R & R is, accordingly, adopted in its entirely.

SO ORDERED.

REPORT AND RECOMMENDATION

CHERYL L. POLLAK, United States Magistrate Judge.

On November 3, 2010, the above captioned case was removed to the Eastern District of New York from the Supreme Court of the State of New York, Queens County. In this case, plaintiff Cleant Hilaire seeks damages for personal injuries that he allegedly sustained on August 24, 2007, while operating a DW745 Heavy Duty 10? Job Site Table Saw, bearing serial number 2006 46–CT 041971 (hereinafter, the “Saw”), during the course of his employment with Harper Design Build, Inc. (Compl.¹ ¶¶ 2, 9, 10 13).

By Notice of Motion dated February 21, 2014, defendant DeWalt Industrial Tool Co. (hereinafter, “Black & Decker”)² moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, and seeks to preclude the testimony of plaintiff's proposed liability expert, Lewis C. Barbe, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (See Def.'s Mem. at 1, 3).

On referral from the district court,³ the undersigned held a Daubert hearing on May 7, 2014,⁴ and submits this Report and Recommendation, respectfully recommending that defendant's motion to preclude the proposed expert testimony of Mr. Barbe be granted and that defendant's Motion for Summary Judgment be granted in its entirety.

FACTUAL BACKGROUND⁵

A. The Accident

On August 24, 2007, plaintiff was attempting to cut a section of cabinet wood, using the DeWalt DW745 Heavy–Duty 10? Job Site Table Saw, bearing serial number 2006 46–CT 041971, when a portion of his left hand was severed by the Saw's blade. (Compl. ¶ 10; Def.'s Mem. at 1–2). At the time of the incident, plaintiff was employed by Harper Design Build, Inc. (“Harper”) as a carpenter and he was working with the Saw at a construction site, located at 381 11th Street in Brooklyn, New York. (Compl. ¶¶ 8, 9). According to plaintiff, Harper had previously acquired the Saw through an authorized Black & Decker dealer. (Id. ¶ 6).

The Saw is a “portable light weight jobsite table saw,” manufactured in November 2006. (Def's. Mem. at 3–4 (citing Schafebook Dep.⁶ at 24–26; Def's Ex. E⁷ )). According to defendant, the Saw is designed to allow an operator to make a variety of cuts, including rip cuts, cross cuts, angled cuts, and non-through cuts. (Id. at 4). Defendant asserts that the Saw was designed in conformity with industry standards and includes a variety of safety features as standard equipment, including a splitter-mounted blade guard assembly, which is designed to reduce the risk that the operator will come into contact with the blade while using the Saw. (Id. (citing Schafebook Dep. at 54–55)). The Saw also includes warnings on the Saw itself and in the instruction manual. (Id. at 5 (citing Def.'s Mem. Exs. E, H)). The warnings advise the user to always use the blade guard during cutting operations. (Id. at 5). However, defendant acknowledges that certain cuts, such as non-through cuts, cannot be performed while the guard is in place. (Id. )

According to plaintiff, he is a high school graduate, with seven years of carpentry and heavy construction experience prior to the accident. (Pl.'s Dep.⁸ at 9, 31–33).

Plaintiff testified that he had used table saws “hundreds of times” and knew that the blade guard was used to help prevent a person's hands from coming into contact with the blade. (Id. at 62–65, 67, 75–77, 95). Plaintiff also testified that when he started working for Harper, he noted that the Saw did not have the blade guard assembly in place and he was concerned about its absence. (Id. at 94–97). He read the warning labels on the Saw and in particular, read the label that stated: “Danger! Keep hands away from the blade.” (Id. at 129–130; Def.'s Ex. E).

On the date of the accident, plaintiff was using the Saw, which had been placed in a makeshift table, set on top of a cabinet. (Id. at 100–103, 126). As plaintiff was in the process of performing a rip cut, using a push stick to push the wood into the Saw blade, the wood got stuck on a lip between the table saw top and the table. (Id. at 115). Without turning off the Saw, plaintiff reached his left hand over the blade to get the wood, while continuing to push the push stick with his other hand. (Id. at 115–119). The force of the blade caused the wood to “kick back” and the blade pulled plaintiff's left hand into the Saw. (Id. ) Defendant contends that it is undisputed that the type of cut being performed by plaintiff could have...