Roman v. Sprint Nextel Corp.

MARIA I. ROMAN, Plaintiff, v. SPRINT NEXTEL CORP., NEXTEL OF NEW YORK, INC., HTC CORP.,

HTC AMERICA HOLDING, INC., HTC AMERICA INNOVATION, INC.,

SPRINT SPECTRUM L.P., and SPRINT SOLUTIONS, INC., Defendants.

SPRINT SPECTRUM L.P., SPRINT SOLUTIONS, INC.,NEXTEL OF NEW YORK, INC., and SPRINT NEXTEL CORP., Cross-Claimants, v. HTC AMERICA HOLDING, INC., HTC AMERICA INNOVATION, INC.,HTC AMERICA, INC., and HTC CORP., Cross-Defendants.

12-CV-276 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 29, 2014

OPINION & ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff Maria Roman alleges that she sustained a burn on her left breast, which developed into complex regional pain syndrome ("CRPS"), during an overnight bus trip from North Carolina to New York City between October 2 and 3, 2010, from a cellular phone that was manufactured by Defendants HTC Corporation and HTC America Holding, Inc. ("HTC") and sold by Defendants Sprint Spectrum, L.P., Sprint Solutions, Inc., and Sprint/United ManagementCompany ("Sprint"). Sprint 56.1 ¶¶ 4-6. Plaintiff filed this complaint in the Supreme Court of the State of New York, New York County, on October 21, 2011, and HTC removed the action to this Court on January 13, 2012. Dkt. 1. After the close of discovery, all Defendants moved for summary judgment. Dkt. 39; Dkt. 48. All Defendants also moved to preclude the testimony of Plaintiff's engineering expert, Roger L. Boyell, id., and HTC moved to preclude the testimony of Plaintiff's medical expert, Dr. Kiril Kiprovski, Dkt. 39.¹ Plaintiff initially brought claims for failure to warn, negligence, and breach of implied warranty. Amended Compl., Dkt. 15. She now withdraws the claims for negligence and breach of implied warranty, leaving failure to warn as the sole remaining cause of action. Pl. Mem. Law Opp. at 2.

For the reasons set forth below, Defendants' motions for summary judgment are DENIED. Defendants' motions in limine to preclude the testimony of Mr. Boyell and Dr. Kiprovski are GRANTED in part and DENIED in part.

I. BACKGROUND

On a motion for summary judgment, the Court construes the evidence in the light most favorable to the nonmoving party. In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008). The following facts are drawn from the pleadings, Plaintiff's deposition, affidavits, and exhibits submitted by the parties.

Plaintiff purchased an HTC EVO 4g cellular phone (the "cell phone") in June 2010. HTC 56.1 ¶ 3. The HTC User Guide ("User Guide") and the HTC Basics Guide ("Basics Guide") include warnings related to the proper use of the product. HTC 56.1 ¶ 4; see HTC Ex. T; HTC Ex. R. The cell phone, like all cell phones, is a low power radio transmitter andreceiver. Roman 56.1 ¶ 32. It operates wirelessly by communicating with the Sprint network through a transmitter chip that sends and receives radio frequency ("RF") signals to "base stations," or network towers with antennas. Roman 56.1 ¶¶ 39-41; HTC Response to Pl. 56.1 ¶¶ 39-41. When the cell phone is turned on, it sends and receives RF signals at varying intervals. Roman 56.1 ¶ 33; HTC Response to Pl. 56.1 ¶ 33.

On October 2, 2010, Plaintiff boarded an overnight bus from Raleigh, North Carolina to New York City. HTC 56.1 ¶¶ 10-11, 26. Before boarding, she charged her cell phone to 100% . HTC 56.1 ¶ 12. She made one brief phone call when she boarded the bus, then turned off the screen, put the cell phone face down against her skin on the left side of her chest, and fell asleep for the duration of the nine-hour bus ride. HTC 56.1 ¶¶ 18-20. She did not power down the phone, nor did she take any steps to turn off WiFi, roaming, or any idle applications. Roman Aff. ¶ 5. After exiting the bus in New York City on October 3, 2010, she removed the phone from under her camisole. Pl. Reply to HTC 56.1 ¶ 27. The surface of the phone had stuck to her skin, and she felt pain when she pulled it loose. Pl. Mem. Law Opp. at 3. The battery depleted from almost 100% to approximately 25% during the bus ride. Id.

Shortly after arriving in New York, Plaintiff showered and noticed a burning, tingling sensation where the cell phone had been. Id. Over the course of the day, she began to feel like she had a "rash" in the area, and later that evening she noticed some skin was missing and blistered. Id. On October 6, 2010, Plaintiff saw her family doctor, who prescribed an ointment commonly used to treat burns. Roman Dep. at 128 (HTC Ex. X). It took more than 10 days for the skin to heal, and the burn left a scar. Id. at 132. Although the surface pain subsided, pain in the tissue beneath the skin persisted. Id. at 134-35. On December 1, 2010, Plaintiff sought treatment for the lingering pain from a breast specialist who had treated her in 2008 to remove acyst from the same breast. Id. at 136-138. After various other treatments, on June 27, 2012, she sought treatment from Dr. Kiril Kiprovski. Id. at 157-158. After his initial consult, Dr. Kiprovski concluded that the burn from the cell phone damaged the intraepidermal and dermal nerves beneath the skin, which caused her to suffer from CRPS. Kiprovski Report, Cerussi Decl. Exh. DD, at 4. Plaintiff claims she still suffers from pain in the area where she sustained the burn.

Plaintiff read the Basics Guide in its entirety when she purchased the phone in June 2010. HTC 56.1 ¶ 5; Roman Dep. at 32 (HTC Exh. X). According to Plaintiff, neither the Basics Guide nor the User Guide contained warnings that would have alerted a user to the risk of sustaining a burn from storing the cell phone, powered on, next to her body for an extended period of time while traveling.

II. DISCUSSION

Plaintiff alleges that Defendants negligently failed to warn that the HTC EVO 4g phone continually emits thermal energy and RF radiation and that the risk of injury from exposure to these emissions varies based on factors such as the operating state of the phone, the active applications of the phone, whether the carrier of the phone is traveling or stationary, the proximity of the phone to the body, and the area of the body exposed to the emissions. Amended Compl. ¶¶ 32-34, 41-42.

Defendants moved for summary judgment on the grounds that Plaintiff lacks sufficient evidence to create a genuine issue of fact as to causation; that the Basics Guide warned against Plaintiff's use; and that Plaintiff lacks sufficient expert evidence to create a genuine issue that the warnings provided were inadequate. Sprint Reply Mem. Law at 2, 9; HTC Mem. Law at 19; HTC Reply Mem. Law at 5-9. Plaintiff claims that the circumstantial evidence creates a genuineissue of fact whether the cell phone was a substantial cause of her injury - even without expert testimony - and whether the warnings in the Basics Guide and User Guide adequately alerted a user to this risk. Pl. Mem. Law Opp. at 11, 15-16.

a. Expert Evidence

The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the expert meets the requirements of Federal Rule of Evidence 702. United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Rule 702 tracks Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993), and its progeny. See Fed. R. Evid. 702 advisory committee's note. The ultimate object of the court's gate-keeping role under Rule 702 is to "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 Co. v. Carmichael, 526 U.S. 137, 152 (1999). To this end, Rule 703 allows an expert to proffer an opinion based on facts "that the expert has been made aware of or personally observed," or, alternatively, on facts or data that "experts in the particular field would reasonably rely on" in forming the opinion. Fed. R. Evid. 703. But Daubert rejected a "rigid" standard that would require general acceptance of the expert's opinion in the scientific community because such a standard would be "inconsistent with the liberal thrust of the Federal Rules." McCullockv. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995) (citing Daubert, 509 U.S. at 588). Instead, "[t]he flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002).

A court's "inquiry into whether an expert meets Rule 702's requirements includes a review of (1) the qualifications of the proposed expert; (2) whether each proposed opinion is based upon reliable data and reliable methodology; and (3) whether the proposed testimony would be helpful to the trier of fact." In re Puda Coal Sec. Inc. Litig., --- F. Supp. 2d ---, No. 11-CV-2598 (KBF), 2014 WL 2915880 at *15 (S.D.N.Y. June 26, 2014). Reliability requires a "sufficiently rigorous analytical connection" between the expert's conclusions and the underlying methodology. Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005). The Supreme Court has cautioned that the district court's focus "must be solely on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595. The Court acknowledges, however, that "conclusions and methodology are not...